Case of Holley

The case of Holley was heard by the Privy Council in June 2005 after the Attorney General for Jersey appealed against the decision of the Court of Appeal of Jersey. The facts of this case are as such; the defendant, Holley, and his girlfriend were both chronic alcoholics and had a violent relationship. On the 13th April 2000 the defendant and his girlfriend spent the day together in the pub. He returned to their shared flat mid-afternoon and began to chop wood with an axe whilst continuing to drink. His girlfriend returned to the flat, drunk, and told him that she had been with another man. He picked up his axe, intending to leave the flat and chop some more wood. However, when his girlfriend said “You haven’t got the guts,” after seeing this action as a threat, he struck her with the axe seven or eight times, causing her death. The defendant was charged with murder but he pleaded not guilty and raised the partial defence of provocation. He was convicted of murder. He appealed and this was allowed due to misdirection on the defence of provocation. At his retrial, psychiatric evidence was given that his consumption of alcohol was involuntary as a result of chronic alcoholism and that the effects of the alcohol was the cause of his loss of self control, causing him to kill. However, the judge said that the effect of drink must be ignored when considering self control in relation to provocation. Again he was convicted of murder and again he appealed. His appeal was allowed due to a misdirection of the jury and his conviction of murder was set aside for one of manslaughter. The Attorney General for Jersey then appealed to the Privy Council, which was allowed.

The defence of provocation is set out in s.3 of the Homicide Act 1957 (which is exactly the same as s. 4 of the Homicide (Jersey) Law 1986) and it states that:

“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 done and said according to the effect which, in their opinion, it would have on a reasonable man.”

It was this issue that the Privy Council had to consider in relation to provocation i.e. whether the defendant’s chronic alcoholism could be taken into account by the jury when assessing whether a reasonable person having ordinary powers of self control would have done what the defendant did.

All nine members of the Board that heard this case agreed that the current law on the issue of provocation was flawed and the conflict between R v Smith (Morgan) and Luc Thiet Thuan needed to be resolved. The Privy Council majority, led by Lord Nicholls of Birkenhead, held that the fact that D was suffering from chronic alcoholism was not a matter to be taken into account by the jury when considering whether a reasonable person having ordinary powers of self control would have done as the defendant did. The majority judges therefore overruled the previous upheld decision of the House of Lords in the case of Smith and upheld the Privy Council’s previous decision in Luc Thiet Thuan. The majority decision in Smith held that account could be taken of a relevant characteristic in relation to the defendant’s power of self-control, whether or not the characteristic was at the gravity of the provocation. In the majority judgement in Holley, Lord Nicholls described the decision in this case as ‘erroneous’.

Instead, the previous leading case of R v Camplin was stated as being correct law and so the judge should advise the jury to compare the defendant to:

“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’s characteristics as [the jury] think would affect the gravity of the provocation.”

The decision in Smith considerably widened the scope of the law on provocation and as the Privy Council in Holley stated, this was inconsistent with previous case law (Camplin, Morhall and the Privy Council’s own previous decision in Luc Thiet Thuan).

The dissenting judges (Lord Bingham, Lord Hoffman and Lord Carswell) disagreed with this and preferred to side with the opinion expressed in the majority in Smith, believing that it was decided correctly. Therefore, by a majority of 6-3, the Privy Council advised that the appeal should be allowed, but the defendant’s conviction of manslaughter by the Court of Appeal should stand.

The majority decision in Holley not only changed the law, it changed the law back to what it had previously been, before the erroneous and controversial decision in Smith, which had been frequently criticized as too subjective and going one step too far. In future cases, therefore, the jury must differentiate factors affecting the gravity of the provocation which are taken into account to determine the seriousness of the provocation, from factors which do not aggravate the particular provocation but affect the defendant’s level of self control. The majority decision in Holley made a major impact in relation to the operation of the doctrine of precedent in the English courts; should further cases follow the decision of the House of Lords in Smith, or the Privy Council in Holley? In his commentary on Holley, Ashworth (2005) said:

“Is Holley binding on English courts? There may be a purist strain of argument to the effect that it is not, since it concerns another legal system (that of Jersey). However, the reality is that nine Lords of Appeal in Ordinary sat in this case, and that for practical purposes it was intended to be equivalent of a sitting of the House of Lords.”

Whilst the advice of the Privy Council is said to be only persuasive, this was a judgment of nine Law Lords sitting as the Judicial Committee. As Lord Nicholls himself stated at the beginning of the majority judgement in Holley, the decision of this appeal was to “clarify definitively the present state of English law, and hence Jersey law, on this important subject.” Lord Bingham and Lord Hoffman stated:

“We must however accept that the effect of the majority decision is as stated in paragraph 1 of the majority judgment.”

Therefore, even the dissenting judges accepted that the majority view now definitively states the current law.

The exceptional circumstances of this case meant that the Court of Appeal acknowledged that this went against the established rules of judicial precedent, identifying the mistake that the Lords had made in their previous interpretation of the law in cases such as Smith.

The Court of Appeal has now decided to apply the Privy Council’s judgment in Holley rather than the House of Lords’ judgment in Smith, confirmed in cases such as Mohammed and James and Karimi.

In a commentary on the latter case, Ashworth (2006) says: “The full Court of Appeal was therefore right to take this bold decision, and, although it remains for the House of Lords to confirm it, the House ought surely to recognise that the court below took the best available approach.”

The consequence of these cases leaves the law in such a place that means it is possible for the Privy Council, in exceptional circumstances, to overrule decisions of the House of Lords. This therefore changes previous understandings of the function of judicial precedent and moves further away from the rule of ‘stare decisis’ by giving Law Lords an alternative way to modify their previous decisions.

The reasons why both the majority and dissenting judges reached the decisions they did are very important in this case.

Lord Nicholls in the majority judgment started by pointing out the that the reasoning in Smith is not easy to reconcile with the reasoning of the House of Lords in Camplin or Morhall.

Furthermore, when assessing the 1957 Homicide Act, the majority of the Board took the literal approach and interpreted it as being a purely objective standard by which the actions of the defendant should be judged. Although Lord Nicholls criticized the point made by the majority in Smith that the objective reasonable man test is incomprehensible to juries, he does acknowledge that the 1957 statutory reference to “a reasonable man” was not the best choice of words in this context and refers to the opinion of Lord Hobhouse, dissenting, in Smith:

“[T]he jury should decide whether in their opinion, having regard to the actual provocation… and their view as to its gravity… a person having ordinary powers of self-control would have done what the defendant did. If some elaboration of the word ‘ordinary’ is thought necessary, it should be along the lines advised by Lord Diplock and used by Judge Coombe in the present case. The phrase ‘reasonable man’ although used in the section is better avoided as not assisting the understanding of the criterion ‘ordinary powers of self-control.”

So although characteristics of the defendant were to be taken into account when assessing the gravity of the provocation, the standard of self control to be expected was only to be compared to one standard. The statute does not allow the jury to set any standard they choose that varies from defendant to defendant, as Lord Nicholls states:

“Whether the provocative acts or words and the defendant’s response met the ‘ordinary person’ standard prescribed by the statute is the question the jury must consider, not the altogether looser question of whether, having regard to all the circumstances, the jury consider the loss of self control was sufficient excusable. The statute does not leave each jury free to set whatever standard they consider appropriate in the circumstances by which to judge whether the defendant’s conduct is ‘excusable’.”

One important influence as to why the majority were in favour of having a completely objective principle in the law of provocation was to prevent a person relying on his own exceptional aggressiveness or excitability as an excuse for his loss of self-control in cases of fatal violence. Therefore, it is clear that the majority in this case took a public policy decision to set a community standard of self control that would not vary between defendants.

However, Lord Nicholls emphasises that there is one compelling reason why the view expressed by the majority in Smith should not be regarded as English Law:

“The law of homicide is a highly sensitive and highly controversial area of the criminal law. In 1957 Parliament altered the common law relating to provocation and declared what the law on this subject should thenceforth be. In these circumstances it is not open to judges now to change (“develop”) the common law and thereby depart from the law as declared by Parliament.”

The majority judges perceived the House of Lords’ decision in Smith as exceeding the boundaries of its authority, as it had interpreted the 1957 Act so differently from its literal meaning that it involved a significant relaxation of the consistent, objective standard intended by Parliament.

Therefore, the reason for overruling Smith is not only that it is erroneous and perhaps to some extent against public policy, but also because it was against Parliament’s intention when the 1957 Act was passed.

He also comments that the law on provocation needs reforming, but that this can only be dealt with by Parliament;

“In expressing their conclusion above their Lordships are not to be taken as accepting that the present state of the law is satisfactory. It is not. The widely held view is that the law relating to provocation is flawed to an extent beyond reform by the courts.”

The three dissenting judges who take a tougher approach include Lord Bingham, Lord Hoffman (who gave the majority judgment in Smith) and Lord Carswell.

Lord Bingham’s dissenting judgment is very powerful and thorough and as Lord Hoffman gave the majority judgement in Smith, he unsurprisingly concurred with the dissent. In their judgement, they held that the standard of the reasonable man is for the jury to determine and that they must take all relevant factors into account, including the defendant’s mental state. The reason for this, in their opinion, is that as each case is individual, this method is the only way that justice can be achieved. This is in complete contrast to the opinion of the majority, who took a less flexible approach, maintaining that only age and sex could be taken into account.

Lord Carswell suggests in his dissenting judgement that, in developing the criminal law, there should be three important criteria:

“Its principles should fit a logical pattern; it should be capable of explanation to a jury; and, above all, it should achieve justice.”

In his opinion, Lord Carswell believed that the approach adopted by the majority in Holley failed to meet these criteria. He ascertains that:

“One must, in order to achieve an acceptable standard of justice, agree with the conclusion reached by the majority in R v Smith.”

He then goes on to say that one other important reason is that a jury would have a difficult time distinguishing between characteristics influencing the defendant’s level of self control and characteristics affecting the gravity of the provocation, as he says:

“I hold the very clear view that the dichotomy between the gravity of the provocation and the level of self-control in reaction cannot readily be made comprehensible to a jury by the directions fashioned by a judge with the greatest care and clarity.”

Both dissenting judgements hold the view that the decision in Smith is in fact consistent with the principles laid down in Camplin and is the correct interpretation of s.3 of the 1957 Act. While the majority judgement chose to interpret the Act literally, in that the reasonable man test must be entirely objective, the dissent chose to interpret the Act by putting it into context with the current law on provocation.

There are several points to be made about the position in which the case of Holley leaves the law. The decision of the Privy Council in this case once more effectively tightened the scope on the law of provocation. Whether this is seen as good or bad, it still does not completely resolve this issue. As Lord Nicholls said in his judgment, “…their Lordships are not to be taken as accepting that the present state of the law is satisfactory. It is not.”

Ever since the defence of provocation was first constructed, there have been many difficulties that have resulted from a failure to develop a clear idea about what role the reasonable person requirement is to play. Just as the issue of the reasonable man seems to have been put to rest (after the decision in Camplin), it is then reawakened in Smith, which gave a completely opposing view as to how this area was to be handled. The fact that there were so many conflicting decisions did seem to leave the law in an ambiguous position. Immediately after the decision in Holley, this area of law was made more unclear as subsequent cases would have a difficult time determining whether they should follow the Privy Council’s decision in Holley, or the House of Lords’ decision in Smith. But due to its exceptional circumstances, the decision in Holley was followed by several cases. Therefore, it was accepted that Holley was now current law on provocation. One positive outcome from this decision, provided all subsequent cases follow this principle, is that at least for now the law would be settled and certain. Consequently, the defendants would be able to predict with some level of certainty the likelihood of the jury decision.

On the other hand, this argument would be more convincing if the Holley case had been decided by a unanimous verdict. As it is, there are still potentially several Lord judges who could prefer the decision of the majority in Smith: more notably those who did not hear the Holley case and whose opinion on this area is unknown. The rule of precedent means that the House of Lords can overrule decisions of the Court of Appeal and the Privy Council. But as several cases (Mohammed, James and Karimi) following Holley did support its decision, it is likely that these decisions will be seen as correct law.

The majority judges in Smith and the dissenting judges in Holley make the point that it is difficult for juries to understand the difference between characteristics affecting the defendant’s level of self control and characteristics affecting the gravity of the provocation. As said by Lord Carswell in his dissent:

“I hold the very clear view that the dichotomy between the gravity of the provocation and the level of self-control in reaction cannot readily be made comprehensible to a jury by the directions fashioned by a judge with the greatest care and clarity.”

However, Lord Nicholls dismissed the view that it might be confusing for jurors to take the defendant‟s characteristics into account for one purpose of the law of provocation but not the other:

“In recent years much play has been made of the “mental gymnastics” required of jurors in having regard to a defendant’s “characteristics” for one purpose of the law of provocation but not another. Their Lordships consider that any difficulties in this regard have been exaggerated.”

Another important point to be made about the law on provocation is its relationship with the partial defence of diminished responsibility (s.2 Homicide Act 1957). One criticism towards the majority opinion in Smith was that it seemed to merge the two defences into one. Therefore, the decision in Holley attempted to separate these defences and encourage defendants with mental abnormalities to seek the defence of diminished responsibility.

As Lord Nicholls states in Holley, s.2 is:

“…apt to embrace some cases where it is inappropriate to apply to the defendant the standard of self-control of an ordinary person. Section 3 , with its objective standard, is to be read with this in mind. The statutory provision regarding diminished responsibility in section 2 represents the legislature’s view on how cases of mental abnormality are to be accommodated in the law of homicide.”

As a result of this, the law is back to the position where mental abnormalities that reduce self-control cannot be relied upon as a partial defence to murder unless they satisfy the tests set out under the defence of diminished responsibility. It can be argued that the reason for this was not to produce a just result, but to satisfy the literal requirements of the 1957 Act.

This means that women suffering from Battered Woman Syndrome may satisfy the first test for provocation, but not the second objective test and they would therefore be back in the position they were before Smith and would have to rely on diminished responsibility, as in the case of Ahluwalia. This is just one reason why the law in this area is still inadequate.

One further criticism of the law on provocation is that it is a contradiction in itself, as it is difficult to imagine a situation where a reasonable man would kill. It can be seen as unjust that a man who kills due to loss of temper shall be convicted of manslaughter whereas someone who kills due to compassion must be convicted of murder.

This outlook has led critics to wonder whether the partial defence of provocation should be allowed to be used at all, as any law that is unjust cannot be seen as satisfactory.

The implication of the decision in Holley for future defendants is that it is more difficult for them to successfully rely on the defence of provocation. This may achieve justice for the family of the victim, but it is unlikely to achieve justice in cases where a mentally impaired defendant who was provoked could not rely on provocation and could not prove they had an abnormality of mind under the partial defence of diminished responsibility (s2 Homicide Act 1957) and so must therefore be convicted of murder.

Both the minority and the majority judgment in Holley conceded that the law on the partial defences of murder, including provocation, are still unsatisfactory and should be further developed. However, both were adamant that additional reform could only be achieved by Parliament. This happened, to an extent, in the Law Commission’s report on the partial defences of murder, which advised Parliament on several reforms that should be made. However, no legislation in this area has yet been drawn up and so as it stands, the decision in Holley is still seen as current law. While ever this decision is followed, the outcome of future cases will be relatively certain, even of they do not always achieve justice.

Bibliography

Cases

R v Camplin [1978] AC 705

R v James; R v Karimi [2006] EWCA Crim 14

R v Smith (Morgan) [2001] 1 AC 146

Luc Thiet Thuan v The Queen [1997] AC 131

Acts of Parliament

Homicide Act 1957 s.3

Books

Alan Reed and Ben Fitzpatrick, Criminal Law (3rd ed, Sweet and Maxwell, London 2006)

Michael Jefferson, Criminal Law (8th ed, Longman Group Ltd 2007)

Journal Articles
Allen M.J (2000) “Provocation’s Reasonable Man: A Plea for Self-Control” , Journal of Criminal Law 216-244

Ashworth A.J (2006) “Appeal: Precedent – Privy Council Decision Overruling Decision of House of Lords” Criminal Law Review 629-631

Edwards S. (2004) “Abolishing Provocation and Reframing Self Defence”, Criminal Law Review 181

Gardner J, Macklem T (2001) “Compassion Without Respect? Nine Fallacies in R. v Smith” Criminal Law Review 623-635

Mitchell B.J, Mackay R.D and Brookbanks W.J (2008) “Pleading For Provoked Killers: In Defence of Morgan Smith” 124 Law Quarterly Review 675-705

Toczek L. (2005) “Provocation – Muddle Resolved?” 155 New Law Journal 1136

Withey C. (2006) “Provocation Ping-Pong?” 156 New Law Journal 299

Law Commission, ‘Partial Defences to Murder’, Law Com No 290, Cm 6301 (2004)

http://www.lawcom.gov.uk/docs/lc290.pdf