AG for Jersey v Holley (2005) reaffirms the fundamentals of criminal law in that the test that ought to be applied is the subjective test and the court ought to look at the accused’s state of mind at the time he or she committed the act as opposed to looking into the characteristics of the reasonable man and very much in line with Sir William Blackstone’s principle that “it is better to let ten guilty persons escape than to let one innocent man suffer” in that we are not looking for reasons to convict but rather we are looking for reasons why we shouldn’t convict and when those reasons aren’t there then the jury is left with no choice but to convict.
Granted that the spiraling crime rate, which has been prompted by various factors, has made judges and juries more inclined to convict, but the fundamentals are and still remain the same.
In AG for Jersey v Holley (2005) both the accused and the victim had a drinking problem. It was a stormy relationship to begin with and there was a history of violence for which the accused, the male partner in the relationship had spent some time in prison.
On the day of the incident, both the accused and the victim had been out drinking and while the accused returned home, the victim remained behind and she returned much later in the same day and confronted the accused with the fact that she’d been with someone else. The accused killed his partner with an axe.
He was charged and convicted for murder in the first instance. The accused appealed and the Court of Appeal quashed the conviction and ordered a retrial. He was convicted again and the Court of Appeal quashed the conviction again and reaffirmed the decision in R v Smith (Morgan) (2000).
The correct test to be applied was to look at the accused’s state of mind at the time he or she committed the act as opposed to if it was a trait or a facet of the reasonable man. The case also further stated that there was no distinction between the law in Jersey and England and Wales and the law for all purposes was the same.
Is a breach of religious principle sufficient to provoke someone with strong religious believes or values? Let us say for example religious principles prevent premarital sex and a father who is a staunch or devout follower of the faith returns home to find his daughter in bed with her boyfriend and the father stabs him with a knife and subsequently kills him.
Can he now rely on the defense of provocation? The answer in short is no. Despite the fact that English law was founded on the tenets of church law and common law, it has evolved on its own and it supersedes or supplants ecclesiastical law and religious law see R v Mohammed (2005).
R v James & Karimi (2006) concerns two separate appeals where the defense of provocation was raised. In the former the accused killed his wife after they’d been separated for four months, rather violently because she’d entered into a relationship with another man. The prosecution was willing to accept a verdict of manslaughter based on diminished responsibility supported by psychiatric reports but the accused refused and chose instead to rely on the defense of provocation which is more difficult to satisfy and is reliant on the reasonable man with the exception of the accused’s age as per DPP v Camplin (1978).
In the latter, the accused was an immigrant who was allowed to stay in England with his wife and soon after his arrival his wife formed a new relationship with another man. His wife’s new partner armed with a knife confronted the accused, verbally insulting him as he did so, and the accused a trained former soldier, disarmed him and stabbed him with the knife. The accused was charged and convicted and he appealed on the grounds of provocation.
Both appeals were dismissed. In the former, because the accused relied on the defense of provocation, the test for provocation was, as far as the courts were concerned, still very much that of “if a reasonable man would have acted or reacted in the manner the accused did” and in the latter taunts, jeers, boos, offending and insulting words directed at the accused may not be sufficient to raise the defense of provocation for murder. Interestingly enough in Karimi the accused did not raise the defense of self-defense but that could have been due to the fact that having disarmed the victim the accused took matters into his own hands and stabbed him.
In R v Hill (2008) the accused and the victim, a homosexual man, were friends. They were occasional drinking buddies and on the night of the incident they’d been out drinking after which they returned to the victim’s flat and the accused fell asleep. The accused claimed that he was awakened in the middle of the night by advances made at him and in response he struck the victim who subsequently hit his head on a chair and died as a result. During the trial, it came to light that the cause of death was not a hit or a blow to the head but rather strangulation.
The jury convicted for murder and the accused appealed for a retrial on the grounds that he had not raised the defense of provocation. His appeal was denied and the Court of Appeal in line with the dictum in R v Ahluwalia (1993) decided that the defense should have been raised in the first instance and the appeal for a retrial was denied.
Copyright © 2018 by Dyarne Ward