[PDF copy of this judgment can be sent to your email for N300 only. Just order through firstname.lastname@example.org and email@example.com or text 07067102097]
DIRECTOR OF PUBLIC PROSECUTIONS
HOUSE OF LORDS
23, 30 JULY 1954
 2 ALL E.R. 801
BEFORE THEIR LORDSHIPS:
LORD SIMONDS LC
LORD GODDARD CJ
LORD TUCKER AND
LORD ASQUITH OF BISHOPSTONE
CRIMINAL; Criminal Law
MARSHALL QC AND O J V KITSON for the appellant.
The Attorney General (SIR LIONEL HEALD QC), ELWES QC and STIMSON for the Crown
C D GEACH, LEICESTER (for the appellant); Director of Public Prosecutions (for the Crown).
G A KIDNER Esq Barrister.
CRIMINAL LAW:– Murder – How proved – Plea of Provocation – Accused sexual impotent – Killed prostitute – Reasonable man not to be invested with physical peculiarities of accused for purpose of determining whether there was provocation.
CHILDREN AND WOMEN LAW:- Murder – Prostitution – Killing of a prostitute for jeering and assaulting a sexually impotent man – whether jeering and assault as described amounted to provocation
HEALTH LAW:- Sexual impotence in youth of 18 years – Attempt to have sex with prostitute – frustration arising therefrom and murder charge
CASES REFERRED TO IN JUDGMENT
Mancini v Public Prosecutions Director  3 All ER 272, AC 1, 111 LJKB 84, 165 LT 353, 2nd Digest Supp.
Holmes v Public Prosecutions Director  2 All ER 124, AC 588, 115 LJKB 417, 175 LT 327, 2nd Digest Supp.
R v McCarthy  2 All ER 262.
R v Lesbini  3 KB 1116, 84 LJKB 1102, 112 LT 175, 15 Digest 779, 8332.
R v Alexander (1913), 109 LT 745, 9 Cr App Rep 139, 14 Digest 61, 271.
R v Welsh (1869), 11 Cox, CC 336, 15 Digest 777, 8314.
SUMMARY OF FACTS AND JUDGMENT
The appellant, who was sexually impotent, attempted in vain to have intercourse with a prostitute, who jeered at him and hit and kicked him. He then stabbed her with a knife and killed her. He was indicted for murder and pleaded provocation. At his trial he was convicted of murder. He appealed to the Court of Criminal Appeal on the ground of misdirection as to the test to be applied in determining whether there was provocation and, his appeal having been dismissed, he appealed to the House of Lords.
Held – The test to be applied in determining whether there had been provocation sufficient to reduce the homicide from murder to manslaughter was that of the effect of the alleged provocation on the mind of a reasonable man; and in applying this test the hypothetical reasonable man did not have to be invested notionally with the physical peculiarities of the accused.
Mancini v Public Prosecutions Director ( 3 All ER 272), applied.
As to Provovation, see Halsbury, Hailsham Edn, Vol 9 p 434 para 745; and for Cases, see Digest, Vol 15 pp 776–782 Nos 8305–8384.
Appeal from a decision of the Court of Criminal Appeal (Hilbery, Cassels and Havers JJ), dated 21 June 1954, dismissing an appeal against a conviction of murder at a trial before Sellers J at Leicester Assizes, on 27 May 1954. The facts appear in the opinion of Lord Simonds LC
Marshall QC and O J V Kitson for the appellant.
The Attorney General (Sir Lionel Heald QC), Elwes QC and Stimson for the Crown.
Their Lordships took time for consideration
Their Lordships dismissed the appeal.
30 July 1954. The following opinions were delivered.
LORD SIMONDS LC.
My Lords, this appeal raises once more a question of importance in the criminal law. Your Lordships, I think, agree with me that, on examination, the question appears to be amply covered by the highest authority, but the answer can usefully be re-stated.
The appellant, a youth of eighteen years, was convicted on 27 May 1954, at Leicester Assizes of the murder of Doreen Mary Redding, a prostitute. He appealed to the Court of Criminal Appeal on the substantial ground of misdirection, claiming that the learned judge who tried the case had wrongly directed the jury on the test of provocation and that, had they been rightly directed, they might have found him guilty not of murder but of manslaughter only. The Court of Criminal Appeal dismissed his appeal, holding that the jury had been rightly directed.
The relevant facts, so far as they bear on the question of provocation, can be shortly stated. The appellant has the misfortune to be sexually impotent, a fact which he naturally well knew and, according to his own evidence, had allowed to prey on his mind. On the night of the crime he saw the prostitute with another man and, when they had parted, went and spoke to her and was led by her to a quiet court off a street in Leicester. There he attempted in vain to have intercourse with her whereupon—and I summarise the evidence in the way most favourable to him—she jeered at him and attempted to get away. He tried still to hold her and then she slapped him in the face and punched him in the stomach: he grabbed her shoulders and pushed her back from him whereat (I use his words),
“She kicked me in the privates. Whether it was her knee or foot, I do not know. After that I do not know what happened till she fell.”
She fell, because he had taken a knife from his pocket and stabbed her with it twice, the second blow inflicting a mortal injury.
It was in these circumstances that the appellant pleaded that there had been such provocation by the deceased as to reduce the crime from murder to manslaughter, and the question is whether the learned judge rightly directed the jury on this issue. In my opinion, the summing-up of the learned judge was impeccable. Adapting the language used in this House in the cases of Mancini v Public Prosecutions Director and Holmes v Public Prosecutions Director to which I shall later refer, he thus directed the jury:
“Provocation would arise if the conduct of the deceased woman, Mrs. Redding, to the prisoner was such as would cause a reasonable person, and actually caused the person to lose his self-control suddenly and to drive him into such a passion and lack of self-control that he might use violence of the degree and nature which the prisoner used here. The provocation must be such as would reasonably justify the violence used, the use of a knife”,
and a little later he addressed them thus:
“The reasonable person, the ordinary person, is the person you must consider when you are considering the effect which any acts, any conduct, any words, might have to justify the steps which were taken in response thereto, so that an unusually excitable or pugnacious individual, or a drunken one or a man who is sexually impotent is not entitled to rely on provocation which would not have led an ordinary person to have acted in the way which was in fact carried out. There may be, members of the jury, infirmity of mind and instability of character, but if it does not amount to insanity, it is no defence. Likewise infirmity of body or affliction of the mind of the assailant is not material in testing whether there has been provocation by the deceased to justify the violence used so as to reduce the act of killing to manslaughter. They must be tested throughout this case by the reactions of a reasonable man to the acts, or series of acts, done by the deceased woman.”
Other passages may be found in his summing-up in which he takes as the test the reaction of the hypothetical reasonable man to the alleged provocation. In the Court of Criminal Appeal, these directions were quoted and approved, and reference was made also to the recent case of R v McCarthy where it was held (ante, p 265) that there is
“… no distinction between a person who by temperament is unusually excitable or pugnacious and one who is temporarily made excitable or pugnacious by self-induced intoxication.”
It appeared to that court, as it appears to me, that
“No distinction is to be made in the case of a person who, though it may not be a matter of temperament is physically impotent, is conscious of that impotence, and therefore mentally liable to be more excited unduly if he is ‘twitted’ or attacked on the subject of that particular infirmity.”
The court thereupon approved and reiterated the proposition that the question for the jury was whether, on the facts as they found them from the evidence, the provocation was, in fact, enough to lead a reasonable person to do what the accused did.
My Lords, no other conclusion was open to the Court of Criminal Appeal, nor is any other conclusion open to your Lordships in view of the recent cases in this House of Mancini and Holmes. The relevant part of the former decision is accurately stated in the headnote in these words:
“The test to be applied is that of the effect of the provocation on a reasonable man, so that an unusually excitable or pugnacious person is not entitled to rely on provocation which would not have led an ordinary person to act as he did.”
And Viscount Simon LC, in a speech in which all their Lordships concurred, referred ( 3 All ER 277) with approval to the decision of the Court of Criminal Appeal in R v Lesbini. It is worth recalling that, in that case, the court said ( 3 KB 1120):
“We agree with the judgment of DARLING, J., in R. v. Alexander and with the principles enunciated in R. v. Welsh, where it is said that (11 Cox, C.C. 338),‘there must exist such an amount of provocation as would be excited by the circumstances in the mind of a reasonable man, and so as to lead the jury to ascribe the act to the influence of that passion’”.
Finally, in Holmes’ case, Viscount Simon, in a speech in which my noble and learned friend, Lord Porter and I, as well as Lord Macmillan and Lord Du Parcq, concurred, after a prolonged hearing and an exhaustive examination of the relevant law used these words ( 2 All ER 126):
“If, on the other hand, the case is one in which the view might fairly be taken (a) that a reasonable person, in consequence of the provocation received, might be so rendered subject to passion or loss of control as to be led to use the violence with fatal results, and (b) that the accused was in fact acting under the stress of such provocation, then it is for the jury to determine whether on its view of the facts manslaughter or murder is the appropriate verdict.”
My Lords, in the face of this authority, I am at a loss to know what other direction than that which he gave could properly have been given by the learned judge to the jury in this case. The argument, as I understood it, for the appellant was that the jury, in considering the reaction of the hypothetical reasonable man to the acts of provocation, must not only place him in the circumstances in which the accused was placed, but must also invest him with the personal physical peculiarities of the accused. Learned counsel, who argued the case for the appellant with great ability, did not, I think, venture to say that he should be invested with mental or temperamental qualities which distinguished him from the reasonable man: for this would have been directly in conflict with the passage from the recent decision of this House in Mancini’s case which I have cited. But he urged that the reasonable man should be invested with the peculiar physical qualities of the accused, as in the present case with the characteristic of impotence, and the question should be asked: what would be the reaction of the impotent reasonable man in the circumstances? For that proposition I know of no authority: nor can I see any reason in it. It would be plainly illogical not to recognise an unusually excitable or pugnacious temperament in the accused as a matter to be taken into account but yet to recognise for that purpose some unusual physical characteristic, be it impotence or another. Moreover, the proposed distinction appears to me to ignore the fundamental fact that the temper of a man which leads him to react in such and such a way to provocation, is, or may be, itself conditioned by some physical defect. It is too subtle a refinement for my mind or, I think, for that of a jury to grasp that the temper may be ignored but the physical defect taken into account.
It was urged on your Lordships that the hypothetical reasonable man must be confronted with all the same circumstances as the accused, and that this could not be fairly done unless he was also invested with the peculiar characteristics of the accused. But this makes nonsense of the test. Its purpose is to invite the jury to consider the act of the accused by reference to a certain standard or norm of conduct and with this object the “reasonable” or the “average” or the “normal” man is invoked. If the reasonable man is then deprived in whole or in part of his reason, or the normal man endowed with abnormal characteristics, the test ceases to have any value. This is precisely the consideration which led this House in Mancini’s case to say that an unusually excitable or pugnacious person is not entitled to rely on provocation which would not have led an ordinary person to act as he did. In my opinion, then, the Court of Criminal Appeal was right in approving the direction given to the jury by the learned judge and this appeal must fail.
My Lords, my noble and learned friend, Lord Goddard CJ, authorises me to say that he has read and concurs in this opinion.
My Lords, I concur.
My Lords, I also concur.
LORD ASQUITH OF BISHOPSTONE.
My Lords, I also concur.