A Case Commentary On Attorney-General For Jersey V Holley

Introduction:

This case commentary is regarding a leave to appeal preferred in the Privy Council against an appeal decided by the Court of Appeal by the Attorney General that has conducted a complete review of legal understanding relating to provocation as a defence (wholly or partially) in a murder trial. The appeal was preferred against the orders of the Court of Appeal of Jersey. In this appeal, the Council comprising nine members clarified legal position and removed conflicts on the subject arising out of conflicting / divergent judgments like Morgan Smith case (R v Smith (Morgan) [2001] 1 AC 146), Luc Thiet Thuan v The Queen [1997] AC 131 and R v Camplin [1978] AC 705 or R v Morhall [1996] AC 90. This commentary covers the factual position of the case and the legal issues discussed with the social and legal perspectives. At the end of this commentary, future impacts of this case have been summed up.

Facts of the Case:

Brief facts of the case, Attorney-General for Jersey v Holley [2005][1] are as under:

Defendant, Mr Dennis Peter Holley was charged with the murder to his girlfriend with an axe while he was drunk and was convicted of murder by the Royal Court after re-trail. His admission for killing was on record; however, the moot point was the provocation. Accused pleaded not guilty and took the defence of sudden provocation, allegedly when her girlfriend taunted him with her relations with others. The Court of Appeal allowed his appeal in 2003[2] and his conviction was converted into manslaughter. The state through Attorney General had appealed against this conversion in the Council.

Legal Issues:

Appellant on the behalf of the State applied to reverse the decision of the decision of conversion of murder conviction into manslaughter. This leave to appeal has considered two major areas of criminal law, i.e. the defence of provocation as admissible under provisions of Homicide Act, 1956 and Homicide (Jersey) Law, 1986 and nature of diminishing responsibility on account of mental impairment and drunkenness.

Discussion on Provocation as Partial Defence in Murder Trails: Social and Legal Context:

In this case, the legal issue was single but a little complicated. As the judgement goes on describing the legal issues, it was stated that partial defence is a part o common law and is considered as a concession in murder trails. Since this defence was introduced in the legal parlance over the period of time considering those circumstances that may lead to a sudden provocation that may be unavoidable and must not attract the strict punishment of death in such murders. Earlier, exception created by section 3 of Homicide Act, 1957 and Article 4 of Homicide (Jersey) Law, 1986 had provided that jury will determine the nature of provocation (verbal, non-verbal, or both) and as to such provocation was enough to lose self control of a reasonable person. These provisions give rise to two ingredients test to be satisfied to the jury, i.e. subjective or factual ingredient and objective or evaluative ingredient.

It is about the presence of any such abnormalities that may lead to the loss of self control and includes any evidence as to mental or other abnormality that may cause a certain provocation much easier than other people. The second and objective ingredient deals with the question of equating situation where reasonable person may act alike. The language of statute defines it as the reaction of a reasonable man that is described as ordinary man in some judgements[3]. Jury has to define that sufficient evidence and reasons were available to consider that with the same level of provocation, a reasonable person would act in the similar fashion as the defendant did in this case. It is the judgement over the gravity of the provocation as well as application of test of standardised self control. Previously, it was decided that in order to convert murder to manslaughter, there must be very strong provocation.[4] However, this self control is considered as differential due to age and sex and it was proposed that this external test must be for like people and not for unlike people.[5] Furthermore, mere presence of provocation is not sufficient to consider the situation but the whole factual position must be kept in mind as if any provocation would result in a reaction or not[6]. In this regard, judicial disagreement on the issue was duly highlighted in the judgement. In Luc Thiet Thuan v The Queen [1997] (PC) majority has adopted the objective test i.e. the standard self control of an ordinary person while adjudicating on impacts of brain damage on the loss of self control.[7] On the other hand, in the R v Smith (Morgan) [2001], majority has rejected the objective test i.e. the standard self control of an ordinary person when defendant was suffering from clinical depression and emphasised on the application of expected behaviour of defendant that reduced the objectivity to individual characteristics and circumstances.[8] These two opinion falls apart and hence are discussed in detail while pronouncing verdict. This case further considers partial aspect of role of mental abnormality and drunkenness on the provocation as defence of diminishing responsibility.

In the social context, it may however, further be added that the use of provocation has been criticised by feminists on the ground that it was often supported the male accused and helped in conversion of murder into manslaughter. There are rare instances where a women accused has taken this defence rather unsuccessful attempts to provoke this defence in backdrop of battered women’s syndrome. Defence of provocation is often used in killing of wives, and partners.

Decision and Analysis:

Majority of the Council (6-3) gave their verdict while confirming the application of external standards as pronounced in Luc Van Thuan case and rejected the personalised objective test. They argue that conditions and attributes to judge relevance of provocation are here to determine gravity of provocation but it will not be the correct standard to judge the reasonableness of the response. This decision leads to the inference that the law relating to provocation is flawed to an extent beyond reform by the courts and it showed a shift from subjectivism in considering factors of diminishing responsibility towards objectivism and removed confusion prevailing over decades in English Criminal Law over provocation. The majority allowed the appeal but without touching the aspects discussed above and therefore, frozen the fate of the case and no change was allowed on the conviction of the defendant as manslaughter.

However, there were dissenting note by two Lords who supported principles laid down in R v Camplin [1978]. They argued to create a distinction character flaws and conditions that may lead to sudden provocation like mental condition and chronic alcoholism as factors of diminishing responsibility. Lord Nicholls declared in his dissenting note that “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 henceforth 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”[9].

Impacts of Holley’s Decision:

The Holley decision has tried to sum up the differences in different legal citation over the legal position on provocation as a defence in murder trails. After the decision, there was a debate as to follow Privy Council’s decision in Holley or abide by the earlier decisions of English Courts as Holley’s decision had a persuasive authority only. In R v James; R v Karimi146, however, the Court of Appeal, however tend to adopt this decision and overruled the impacts of R v Smith (Morgan). This judgment as a result resolved the complication of law about provocation.

In the later years, as the result of report of Law Reform Commission, 2009[10], section 54 of the Coroners and Justice Act, 2009 was introduced that provided loss of control defence as partial defence against murder conviction, but with the restrictive application and gender neutrality[11]. It is estimated that in the ensuing years, the murder conviction would be increased.

Conclusion:

As the result of Hooley decision, many conflicts and complications in English law were removed on provocation. It was the first decision that comprehensively discussed all previous versions and opted one as objective and the same version was later on adopted by Court of Appeal and Law Commission 2009 that resulted in introduction of Section 54 of the Coroners and Justice Act, 2009.

 

 

 

Bibliography

  • Attorney-General for Jersey v Holley [2005] UKPC 23
  • Coroners and Justice Act, 2009
  • Law Reform, (2009), Report Defences in Criminal Law, (LRC 95 – 2009)
  • Luc Thiet Thuan v The Queen [1997] (PC)
  • Morgan Smith case (R v Smith (Morgan) [2001] 1 AC 146),
  • R v Camplin [1978] AC 705, 717
  •  R v Morhall [1996] AC 90, 98
  • R v Smith (Morgan) [2001] (HL)
  • R v Welsh 11 Cox CC 336, 339
  • Saunders, D. G. (1986). When battered women use violence: Husband-abuse or self-defense?. Violence and victims, 1(1), 47-60.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

                                                                                         

 


[1] Attorney-General for Jersey v Holley [2005] UKPC 23

[2] 2003 JLR 22

[3] R v Camplin [1978] AC 705, 717; R v Morhall [1996] AC 90, 98

[4] R v Welsh 11 Cox CC 336, 339

[5] Saunders, D. G. (1986). When battered women use violence: Husband-abuse or self-defense?. Violence and victims1(1), 47-60.

[6] R v Morhall [1996] AC 90

[7] Luc Thiet Thuan v The Queen [1997] (PC)

[8] R v Smith (Morgan) [2001] (HL)

[9] Holley Case

[10] Law Reform, (2009), Report Defences in Criminal Law, (LRC 95 – 2009)

[11] Coroners and Justice Act, 2009

 


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