Provocation: Muddying the Waters

Extract

In Smith [2000] 3 W.L.R. 654 the House of Lords by a bare majority affirmed the decision of the Court of Appeal (noted at (1999) 58 C.L.J. 7) and in doing so resolved a long-standing dispute as to which characteristics of the defendant are relevant when determining whether the reasonable person would have lost self-control and killed the victim (the objective test of provocation). Two distinct lines of authority had developed. First, a group of House of Lords and Privy Council cases had recognised that a characteristic would only be relevant where it affected the gravity of the provocation. Secondly, a line of Court of Appeal cases had recognised a wider test, whereby a characteristic would also be relevant if it affected the defendant’s ability to exercise self-control. The House of Lords has now confirmed the latter test. Consequently, in Smith itself the defendant’s severe depression was relevant because it made him less able to exercise self-control.