James, R v

These two appeals have been heard together because each turns on the true interpretation of section 3 of the Homicide Act 1957 (‘section 3’). The court has sat five strong because they raise a novel and important question of the law relating to precedent. Should this court accept that the decision of the Privy Council in Attorney General for Jersey v Holley [2005] UKPC 23; [2005] 2 AC 580 has effectively overruled the decision of the House of Lords in R v Smith (Morgan) [2001] 1 AC 146?

Karimi was convicted of murder in the Central Criminal Court, following a retrial, after a reference by the Criminal Cases Review Commission (‘CCRC’), on 4 October 2005. He was sentenced to life imprisonment with a minimum term of 11 years. He came before the court on an application for permission to appeal that had been referred by the Registrar. We granted that permission in the course of the hearing.

James was convicted of murder in the Crown Court at Nottingham and sentenced to life imprisonment. An appeal was dismissed by the court on 23 March 1982. James has been released on licence. His case has been referred by the CCRC.

We shall set out the facts in relation to each appeal in the second part of this judgment. As will appear, the success of each appeal depends upon this court preferring, as the definitive statement of the English law of provocation, the decision of the House of Lords in Morgan Smith rather than the subsequent decision of the Privy Council in Holley.

The background to these appeals is long and complex. We can and will simplify it. A full account is given in paragraphs 4 to 6 of Lord Hoffmann’s speech in Morgan Smith and paragraphs 3 to 16 of the Advice of the majority, delivered by Lord Nicholls of Birkenhead, in A-G v Holley [2005] UKPC 23; [2005] 2 AC 580.

Murder is a common law offence. For well over two hundred years the common law has also recognised a partial defence to a charge of murder in respect of a defendant who killed under provocation. By the end of the 19^th Century the following elements in this defence were established: (i) the provocation had to consist of conduct, usually physical violence, (ii) its effect had to be to make the defendant lose his self-control and (iii) the nature of the provocation had to be such as might make a reasonable man react in the same way as the defendant.

Section 3 of the 1957 Act, passed in response to recommendations of a Royal Commission on Capital Punishment, did not attempt a complete codification of the common law defence of provocation, but set out a partial definition of some of its elements. It provided:

“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.”

The test of the reaction of a reasonable man in the context of the law of provocation was never an easy one. On its face the test was objective, but section 3 took the unusual step of preventing the judge from ever withdrawing the issue from the jury. Furthermore, by extending the scope of provocation to things said as well as things done, section 3 made application of the test considerably more complicated. The implications of the change were considered by the House of Lords in R v Camplin [1978] AC 705. The leading speech was given by Lord Diplock. He remarked that where provocation consisted of taunts or insults, these might be directed to particular characteristics of the defendant, so that the gravity of the provocation would depend upon those characteristics. Thus, when considering the gravity of the provocation, it was legitimate to have regard to the particular characteristics of the defendant. Neither the effect nor the correctness of this part of Lord Diplock’s speech has since been questioned.

The part of Lord Diplock’s speech that has given rise to controversy related to the implications for the test of the reaction of the reasonable man of the fact that the defendant was only fifteen years of age. Lord Diplock held that, when considering whether the defendant’s reaction to provocation had been that of a reasonable man, the jury should have regard to the age of the defendant. At the end of his speech, at p.718, he advanced the following as being a proper direction to the jury:

“The judge should state what the question is using the very terms of the section. He should then explain to them that the reasonable man referred to in the question is 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 aspects sharing such of the accused’s characteristics as they think would affect the gravity of the provocation to him; and that the question is not merely whether such a person would in like circumstances be provoked to lose his self-control but also whether he would react to the provocation as the accused did.”

The controversy that subsequently developed in respect of Lord Diplock’s speech in Camplin led ultimately to the extraordinary events that have given rise to this appeal. That controversy extends to the true interpretation of a number of decisions that purported to follow Camplin and to the effect of the observations of Lord Goff of Chievely in R v Morhall [1996] AC 90 but we can pick up the story with the decision of the Privy Council in Luc Thiet Thuan v R [1997] AC 131. This was an appeal from Hong Kong and the Board proceeded on the basis that the law of Hong Kong was the same as the law of England. The defendant, who had been convicted of murder, suffered from brain damage which reduced his capacity for self-control. The issue was whether this should have been taken into account when considering whether he had reacted as a reasonable man would have done. In giving the advice of the majority (Lord Goff of Chievely, Sir Brian Hutton and Sir Michael Hardie Boys), Lord Goff purported to follow Camplin. He held that the standard of self-control to be applied was that of the ordinary person, not that of a brain damaged person. Lord Steyn dissented, expressing the view that Lord Diplock in Camplin had held that, when considering the standard of self-control required to satisfy section 3, there must be attributed to the reasonable man any special characteristics of the defendant.

Two decisions of this court followed in which the court declined to follow the majority in Luc Thiet Thuan, holding that the majority decision was in conflict with decisions of the Court of Appeal and that the law of precedent bound the court to prefer its own decisions: R v Campbell [1997] 1 Cr App R 199; R v Parker (unreported; 25 February 1997).

The controversy came to a head in Morgan Smith, where the Committee consisted of Lord Slynn of Hadley, Lord Hoffmann, Lord Clyde, Lord Hobhouse of Woodborough and Lord Millett. Of these, only Lord Hoffmann remains today a member of the Appellate Committee. The defendant had a mental condition which had the effect of reducing his self-control below that of an ordinary person. The judge directed the jury that they should disregard this mental condition when considering whether a reasonable man would have lost his self-control. The Court of Appeal held that this was a misdirection. The judge should have directed the jury that the defendant’s mental impairment was a characteristic that should have been attributed to the notional reasonable man when considering the defence of provocation. The Crown appealed.

Lord Hoffmann gave the leading speech. After a lengthy and erudite account of the history of the law of provocation he turned to consider the construction of section 3. Approaching the question of construction in what he described as the orthodox way he concluded in paragraph 6 that “the concept of the reasonable man as a touchstone of the objective element could not have been intended to be the same” under section 3 as it had been before the 1957 Act. This was to be inferred (i) from the extension of provocation to words and (ii) from the fact that the issue of provocation had to be left to the jury. The jury “were to determine not merely whether the behaviour of the accused complied with some legal standard but could determine for themselves what the standard in the particular case should be”. The jury should find the defence of provocation made out where they thought “that the circumstances were such as to make the loss of self control sufficiently excusable to reduce the gravity of the offence from murder to manslaughter”.

Lord Hoffmann found support for this conclusion in the English authorities that addressed section 3. In particular, he concluded that Lord Diplock in Camplin had held that all the personal characteristics of the defendant should be taken into account by the jury when deciding whether the defendant’s loss of self-control satisfied the requirements of section 3. He concluded that the majority in Luc Thiet Thuan had been in error and that Lord Steyn had been correct. At paragraph 11 he described the manner in which a judge should direct a jury in relation to provocation as follows:

“In my opinion, therefore, judges should not be required to describe the objective element in the provocation defence by reference to a reasonable man, with or without attribution of personal characteristics. They may instead find it more helpful to explain in simple language the principles of the doctrine of provocation. First, it requires that the accused should have killed while he had lost self-control and that something should have caused him to lose self-control. For better or for worse, section 3 left this part of the law untouched. Secondly, the fact that something should have caused him to lose self-control is not enough. The law expects people to exercise control over their emotions. A tendency to violent rages or childish tantrums is a defect in character rather than an excuse. The jury must think that the circumstances were such as to make the loss of self-control sufficiently excusable to reduce the gravity of the offence from murder to manslaughter. This is entirely a question for the jury. In deciding what should count as a sufficient excuse they have to apply what they consider to be appropriate standards of behaviour.”

Lord Slynn and Lord Clyde delivered speeches that concurred with that of Lord Hoffmann. Lord Clyde echoed Lord Hoffmann when he said at p. 180:

“Although the statute expressly refers to a reasonable man it does not follow that in directing a jury on provocation a judge must in every case use that expression. The substance of the section may well be conveyed without necessarily importing the concept of a reasonable man”.

Lord Hobhouse of Woodborough made a lengthy and vigorous dissent. He differed at almost every point with the analysis of Lord Hoffmann. In particular, he concluded that Lord Diplock in Camplin had held that the conduct of the defendant had to be compared with that of a person possessing ordinary powers of self-control. In one respect Lord Hobhouse agreed with Lord Hoffmann. He expressed the view that, when addressing the jury, the phrase ‘reasonable man’ was better avoided. If the jury formed the view that the defendant might have killed as a result of losing his self-control as a result of provocation they should be instructed to ask themselves whether “a person having ordinary powers of self-control would have done what the defendant did”. Lord Millett delivered a speech agreeing with Lord Hobhouse.

Up to this point nothing procedurally untoward had occurred. The House of Lords in Camplin had interpreted section 3, but there was disagreement as to the effect of that part of their decision which addressed the test of the reaction of the reasonable man. There were conflicting decisions of the Privy Council and the Court of Appeal. The House of Lords in Morgan Smith had resolved the conflict by a majority of three to two, declining to follow the majority in the Privy Council, whose decision was not binding upon them. It was quite clear what the majority in Morgan Smith had decided. That decision became, however, the subject of considerable academic criticism.

On rare occasions decisions of the House of Lords are almost immediately recognised to have been erroneous. Such an occasion occurred when the House interpreted the Criminal Attempts Act 1981 in Anderton v Ryan [1985] 2All ER 355 in such a manner as virtually to emasculate the Act. The error was acknowledged by the House when Anderton v Ryan was overruled by Shivpuri [1986] 1 All ER 334, pursuant to the Practice Statement (Judicial Precedent) [1966] 1 WLR 1234. That Statement reads as follows:

“Practice Statement (Judicial Precedent) [1966] 1 WLR 1234

Their Lordships regard the use of precedent as an indispensable foundation upon which to decide what is the law and its application to individual cases. It provides at least some degree of certainty upon which individuals can rely in the conduct of their affairs, as well as a basis for orderly development of legal rules.

Their Lordships nevertheless recognise that too rigid adherence to precedent may lead to injustice in a particular case and also unduly restrict the proper development of the law. They propose therefore to modify their present practice and, while treating former decisions of this House as normally binding, to depart from a decision when it appears right to do so.

In this connection they will bear in mind the danger of disturbing retrospectively the basis on which contracts, settlements of property and fiscal arrangements have been entered into and also the especial need for certainty as to the criminal law.

This announcement is not intended to affect the use of precedent elsewhere than in this House.”

The decision in Shivpuri to depart from such a recent decision, particularly a decision on statutory interpretation, was very unusual. It would equally have been unusual had the House, pursuant to the practice direction, decided to depart from its decision in Morgan Smith. In the absence of a suitable appeal, however, that course was not even available. What did occur was an appeal to the Privy Council by the Attorney General for Jersey against a decision of the Court of Appeal of Jersey that had applied Morgan Smith in substituting a conviction for manslaughter for a conviction for murder. In doing so the Court of Appeal had to interpret a provision of the Homicide (Jersey) Law 1986 that was in identical terms to section 3. The case was Attorney General for Jersey v Holley.

Normally the result in Holley would have been a foregone conclusion. The majority decision in Morgan Smith would have been followed and the appeal would have been dismissed. The jurisprudence of the Privy Council had established that, where an appeal turned on a point of English law, or law identical to English law, the Privy Council should follow a decision of the House of Lords. This was made plain in two appeals from Hong Kong. In De Lasala v De Lasala [1980]AC 546 at p. 558 Lord Diplock dealt with the relationship between the Judicial Committee of the Privy Council and the Appellate Committee of the House of Lords in the following passage:

“a decision of the House of Lords on a matter which in Hong Kong is governed by the common law by virtue of the Application of English Law Ordinance is not ipso facto binding upon a Hong Kong court although its persuasive authority must be very great, since the Judicial Committee of the Privy Council, whose decisions on appeals from Hong Kong are binding on all Hong Kong courts, shares with the Appellate Committee of the House of Lords a common membership. This Board is unlikely to diverge from a decision which its members have reached in their alternative capacity, unless the decision is in a field of law in which the circumstances of the colony or its inhabitants make it inappropriate that the common law in that field should have developed on the same lines in Hong Kong as in England.

Different considerations, in their Lordships’ view, apply to decisions of the House of Lords on the interpretation of recent legislation that is common to Hong Kong and England. Here there is no question of divergent development of the law. The legislation in Hong Kong has chosen to develop that branch of the law on the same lines as it has been developed in England, and, for that purpose, to adopt the same legislation as is in force in England and falls to be interpreted according to English canons of construction. What their Lordships have already said about the common membership of the Judicial Committee of the Privy Council and the Appellate Committee of the House of Lords applies a fortiori to decisions of the House of Lords on interpretation of recent English statutes that have been adopted as the law of Hong Kong. Since the House of Lords as such is not a constituent part of the judicial system of Hong Kong it may be that in juristic theory it would be more correct to say that the authority of its decision on any question of law, even the interpretation of recent common legislation can be persuasive only; but looked at realistically its decision on such a question will have the same practical effect as if they were strictly binding, and courts in Hong Kong would be well advised to treat them as being so.”

Even more pertinent in the present context is the following passage in the advice of a Board of the Privy Council consisting of five Law Lords in Tai Hing Ltd v Liu Chong Hing Bank [1986] 1 AC 80 at p. 108:

“It was suggested, though only faintly, that even if English courts are bound to follow the decision in Macmillan’s case the Judicial Committee is not so constrained. This is a misapprehension. Once it is accepted, as in this case it is, that the applicable law is English, their Lordships of the Judicial Committee will follow a House of Lords’ decision which covers the point in issue. The Judicial Committee is not the final judicial authority for the determination of English law. That is the responsibility of the House of Lords in its judicial capacity. Though the Judicial Committee enjoys a greater freedom from the binding effect of precedent than does the House of Lords, it is in no position on a question of English law to invoke the Practice Statement (Judicial Precedent) [1966] 1 WLR 1234 of July 1966 pursuant to which the House has assumed the power to depart in certain circumstances from a previous decision of the House. And their Lordships note, in passing, the Statement’s warning against the danger from a House of Lords’ decision in a case where, by reason of custom, statute, or for other reasons peculiar to the jurisdiction where the matter in dispute arose, the Judicial Committee is required to determine whether English law should or should not apply. Only if it be decided or accepted (as in this case) that English law is the law to be applied will the Judicial Committee consider itself bound to follow a House of Lords’ decision.”

These statements of principle accorded with statements of the House of Lords, such as that of Lord Wilberforce in Miliangos v Geo. Frank (Txtiles) Ltd [1975] 1 WLR 758 at p. 763:

“It has to be reaffirmed that the only judicial means by which decisions of this House can be reviewed is by this House itself, under the declaration of 1996”.

The procedure adopted and the comments of members of the Board in Holley suggest that a decision must have been taken by those responsible for the constitution of the Board in Holley to depart from the position stated in the above passages and to use the appeal as a vehicle for reconsidering the decision of the House of Lords in Morgan Smith, not just as representing the law of Jersey but as representing the law of England. A decision was taken that the Board hearing the appeal to the Privy Council should consist of nine of the twelve Lords of Appeal in Ordinary. Those sitting were Lord Bingham of Cornhill, the senior Law Lord, Lord Nicholls of Birkenhead, Lord Hoffmann, Lord Hope of Craighead, Lord Scott of Foscote, Lord Rodger of Earlsferry, Lord Walker of Gestingthorpe, Baroness Hale of Richmond and Lord Carswell. Counsel for the Respondent is reported at p. 585 as submitting that “the Privy Council should not determine whether a decision of the House of Lords is wrongly decided”. It seems to us that a decision had already been taken that this was precisely what the Board should do.

In the event the Board divided six/three. The majority concluded that Morgan Smith had been wrongly decided and that the majority in Luc Thiet Thuan had accurately stated the law. The dissentients were Lord Bingham, Lord Hoffmann and Lord Carswell. Lord Nicholls began the advice of the majority as follows:

“1.

This appeal from the Court of Appeal of Jersey calls for examination of the law relating to provocation as a defence or, more precisely, as a partial defence to a charge of murder. Jersey law on this subject is the same as English law. In July 2000 the House of Lords considered the ingredients of this defence in the Morgan Smith case (R v Smith (Morgan) [2001] 1 AC 146). The decision of the House in that case is in direct conflict with the decision of their Lordships’ board in Luc Thiet Thuan v The Queen [1997] AC 131. And the reasoning of the majority in the Morgan Smith case is not easy to reconcile with the reasoning of the House of Lords in R v Camplin [1978] AC 705 or R v Morhall [1996] AC 90. This appeal, being heard by an enlarged board of nine members, is concerned to resolve this conflict and clarify definitively the present state of English law, and hence Jersey law, on this important subject.”

At the end of their dissenting opinion, Lord Bingham and Lord Hoffmann added the following comment at paragraph 68:

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

It seems to us that this can only mean that they accepted that the decision of the majority clarified definitively the present state of English law. Lord Carswell, who gave an individual dissenting opinion, stated at paragraph 69 that he fully agreed with the reasons given and the conclusions reached in the dissenting opinion of Lord Bingham and Lord Hoffmann. Our understanding is that Lord Carswell’s agreement extended to Lord Bingham and Lord Hoffmann’s acceptance that the decision of the majority clarified definitively the present state of English law.

The majority in Holley gave the following explanation for concluding that the majority decision in Morgan Smith was erroneous:

“22.

… 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. However much the contrary is asserted, the majority view does represent a departure from the law as declared in section 3 of the Homicide Act 1957. It involves a significant relaxation of the uniform, objective standard adopted by Parliament. Under the statute the sufficiency of the provocation (“whether the provocation was enough to make a reasonable man do as [the defendant] did”) is to be judged by one standard, not a standard which varies from defendant to defendant. Whether the provocative act 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 sufficiently 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”.”

While we do not believe that it has any relevance to the resolution of these appeals, we should record that this court finds the reasoning of the majority in Holley to be convincing.

In 2003 the Judicial Studies Board issued a specimen direction in respect of provocation that was based on Morgan Smith. Directions that followed this specimen direction were unlikely to give rise to appeals. Three judgments relating to directions on provocation in respect of trials pre-dating Holley have, however, been given in this court since the decision in Holley. The first was R v Van Dongen [2005] EWCA Crim 1728. The appellants had been convicted of murder. They complained that, although there had been evidence of provocation, the judge had not left that partial defence to the jury. The court dismissed the appeal on the ground that the jury would inevitably have been certain that no reasonable man would have reacted to the provocation, taking that provocation at its highest, in the way that the appellants had reacted. The appeal was heard before the decision in Holley was published, although judgment was delivered after it. The court, presided over by May LJ, observed that Holley had not affected the decision. It remarked at paragraph 61:

“We assume, but do not decide, because it is not necessary to do so, that Holley, a decision of the Privy Council, would be taken as binding in England and Wales.”

The second case was R v Faqir Mohammed [2005] EWCA Crim 1880 in which the court, presided over by Scott Baker LJ, granted permission to appeal in the course of the hearing on grounds that related to the judge’s summing up in respect of provocation. The report of Holley was published after argument and the court gave the parties the opportunity of making further written submissions in respect of this decision. The court recorded at paragraph 43:

“Although Holley is a decision of the Privy Council and Morgan Smith a decision of the House of Lords, neither side has suggested that the law of England and Wales is other than as set out in the majority opinion set out in the majority opinion delivered by Lord Nicholls in Holley and we have no difficulty in proceeding on that basis”

The third case was an application for permission to appeal, heard by a two man court presided over by Hughes J, on 19 July 2005. The applicant had been convicted of murder after a direction on provocation that was found by the court to be “fully in accord with Morgan Smith”. The court proceeded, however, on the basis that “as the law is now understood under Holley, a direction somewhat less favourable to the applicant would have been required”.

Professor Ashworth, whose comments on this area of the law have assisted the debate in a number of the decisions to which we have referred, commented on the decision in Holley in [2005] Crim L R 966. He expressed the following view on its effect:

“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. It is likely that anyone attempting to argue that Morgan Smith is still good law in England and Wales would receive short shrift, and the Court of Appeal in Van Dongen (below, p931 at [61] of the judgment) assumed, without deciding, that Holley now represents English law.”

The Judicial Studies Board has not yet issued an alternative specimen direction to that based on Morgan Smith to which we have referred. We understand that it may be awaiting the result of these appeals. We believe, however, that Professor Ashworth’s appraisal of the position is realistic and that judges who currently have to sum up on provocation are doing so on the premise that the law is accurately stated in the majority decision in Holley.

Before the decision in Holley the impact on the Criminal Division of the Court of Appeal of a decision of the Privy Council and a decision of the House of Lords in the light of well established principles of the law of precedent was not in doubt. While there was some doubt as to the circumstances in which the Court of Appeal could depart from one of its own decisions, there was no doubt that it was bound to follow a decision of the House of Lords. If authority is necessary for this proposition one can do no better than refer to this passage from the speech of Lord Wilberforce in Miliangos at p. 773:

“It is true that since 1966 your Lordships have power to depart from a previous decision of your Lordships’ House; although, in view of the limited resources available to decision-making by a court of law, it is a power which your Lordships have exercised with proper restraint. But the statement of Lord Gardiner LC of July 26, 1966 [Practice Statement: (Judicial Precedent) [1966] 1 WLR 395], expressly asserted that it was “not intended to affect the operation of the rule of precedent elsewhere than” in your Lordships’ House; and it is clear law that the Court of Appeal is bound by a decision of your Lordships’ House and (at least on its civil side) by a previous decision of the Court of Appeal itself: Young v Bristol Aeroplane Co. Ltd [1944] KB 718; [1946] AC 163, 160. Any change in this respect would require legislation.”

The principle that, in civil matters at least and subject to recognised exceptions, the Court of Appeal was bound to follow its own decisions was vigorously emphasised by the House of Lords in Davis v Johnson [1979] AC 264; the passage of Lord Diplock’s speech dealing with this topic runs to five pages of the law report. That principle went so far as to require the Court of Appeal to prefer its own previous decision to a conflicting subsequent decision of the Privy Council, although in practice there have been some notable exceptions to that principle, of which perhaps the most notable is the decision of the Privy Council in The Wagon Mound [1961] AC 388, which was universally accepted as having displaced the decision of the Court of Appeal in In re Polemis [1921] 3KB 560.

In the present context we observe that Lord Clyde commented at p. 184 of Morgan Smith that the Court of Appeal was bound by its own line of authority and thus not required to make any choice between it and Luc Thiet Thuan. In R v Campbell [1977] 1 Cr App R 199 Lord Bingham CJ, giving the judgment of this court, referred to a perceived conflict between the decision of the Privy Council in Luc Thiet-Thuan and a number of decisions of this court. He commented at p. 207:

“We do not, however, conceive that it is open to us to choose between these competing views. The previous decisions of this Court are binding upon us. The decision of the Privy Council is not. It appears to us that unless and until the previous decisions of this Court are authoritatively overruled, our duty and that of trial judges bound by the decisions of this Court is to apply the principles which those cases lay down.”

Counsel on behalf of each appellant understandably invoked the established principles of the law of precedent to which we have referred above. They urged simply that it was not open to this court to prefer the decision in Holley to that in Morgan Smith. They also urged that the principles in question were designed to ensure certainty of the law and that, if we preferred the decision in Holley, we would throw the law into great uncertainty, leaving the lower courts with no clear principle as to when they could follow a decision of the Privy Council rather than a decision of the Court of Appeal or even the House of Lords.

For the Crown in each appeal Sir Allan Green QC accepted that there was abundant authority to the effect that decisions of the Privy Council were generally no more than persuasive, but submitted that the position in the present case was exceptional. The Board in Holley consisted of nine Lords of Appeal in Ordinary. It was clearly the intention of the Board to declare the law of England. This court should accept that they had done so. Sir Allan referred us to the following statement of Lord Woolf CJ, when giving the judgment of a five member Court of Appeal in R v Simpson [2003] EWCA Crim 1499:

“The rules as to precedent reflect the practice of the courts and have to be applied bearing in mind that their objective is to assist in the administration of justice. They are of considerable importance because of their role in achieving the appropriate degree of certainty as to the law. This is an important requirement of any system of justice. The principles should not, however, be regarded as so rigid that they cannot develop in order to meet contemporary needs. ”

Sir Allan submitted that, far from creating uncertainty if we followed Holley we would createuncertainty if we failed to follow that decision. When we asked him what principles we should identify as justifying departure from the existing rules of precedent he answered that the less we said the better. We should leave it to the House of Lords to decide whether we had acted correctly and to lay down any change in applicable principles needed to accommodate the procedure adopted in Holley.

Thus far the nine Lords of Appeal in Ordinary, who set out in Holley to “clarify definitively” this difficult area of English criminal law, appear to have succeeded. The decision of the majority has been taken to be the law on three occasions by this court and, as we understand the position, is being followed in directions to juries in England and Wales. If these appeals, or any other raising the same issue, reach the House of Lords, the result would seem to be a foregone conclusion. Half of the Law Lords were party to the majority decision in Holley. Three more in that case accepted that the majority decision represented a definitive statement of English law on the issue in question. The choice of those to sit on the appeal might raise some nice questions, but we cannot conceive that, whatever the precise composition of the Committee, it would do other than rule that the majority decision in Holley represented the law of England. In effect, in the long term at least, Holley has overruled Morgan Smith.

If we accept what Professor Ashworth describes as “the purist strain of argument” and allow these appeals, our decision, until reversed by the House of Lords as it surely will be, will have to be followed by judges directing juries in trials around the country. Sir Allan was right to refer to this as reducing the law to a game of ping-pong. We do not wish to produce such a result. If we are not to do so, however, two questions must be faced: (i) how do we justify disregarding very well established rules of precedent? and (ii) what principles do we put in place of those that we are disregarding? The two questions are obviously interrelated.

As to the first question, it is not this court, but the Lords of Appeal in Ordinary who have altered the established approach to precedent. There are possible constitutional issues in postulating that a Board of the Privy Council, however numerous or distinguished, is in a position on an appeal from Jersey to displace and replace a decision of the Appellate Committee on an issue of English law. Our principles in relation to precedent are, however, common law principles. Putting on one side the position of the European Court of Justice, the Lords of Appeal in Ordinary have never hitherto accepted that any other tribunal could overrule a decision of the Appellate Committee. Uniquely a majority of the Law Lords have on this occasion decided that they could do so and have done so in their capacity as members of the Judicial Committee of the Privy Council. We do not consider that it is for this court to rule that it was beyond their powers to alter the common law rules of precedent in this way.

The rule that this court must always follow a decision of the House of Lords and, indeed, one of its own decisions rather than a decision of the Privy Council is one that was established at a time when no tribunal other than the House of Lords itself could rule that a previous decision of the House of Lords was no longer good law. Once one postulates that there are circumstances in which a decision of the Judicial Committee of the Privy Council can take precedence over a decision of the House of Lords, it seems to us that this court must be bound in those circumstances to prefer the decision of the Privy Council to the prior decision of the House of Lords. That, so it seems to us, is the position that has been reached in the case of these appeals.

What are the exceptional features in this case which justify our preferring the decision in Holley to that in Morgan Smith? We identify the following

We doubt whether this court will often, if ever again, be presented with the circumstances that we have described above. It is those circumstances which we consider justify the course that we have decided to take, and our decision should not be taken as a licence to decline to follow a decision of the House of Lords in any other circumstances.

For the reasons that we have given, we approach the individual appeals on the premise that the relevant principle of law is to be found in the majority decision of the Privy Council in Holley and not the majority decision of the House of Lords in Morgan Smith. We turn now to the individual appeals.

Leslie Hall James killed his wife Jennifer on 1 May 1979. She was stabbed three times, punched and finally suffocated. It had been an unhappy marriage. The couple had been separated on 28 December 1978, when Mrs James left the matrimonial home. She had formed a relationship with another man, Nigel Dutfield. Between the date of the separation and the offence police were called to disturbances arising between the appellant, Mrs James and Mr Dutfield.

On the morning of the killing the appellant left his place of work and travelled to Mrs James’ home. He had with him a knife he had previously borrowed from a colleague at work in order to cut a cork template. An argument developed in the course of which the appellant attacked and killed his wife. After establishing that she was no longer breathing he wrapped the body in a counterpane and dragged it to the foot of the stairs. He then returned to work. During his lunch hour he returned to the house and changed the locks. Later that afternoon he collected his daughter from school. The body was discovered that evening by Mr Dutfield, who had to force his way into the house.

At the Crown Court at Nottingham on 26 October 1979 prosecuting counsel confirmed that in the light of medical evidence then available a plea of guilty to manslaughter on the basis of diminished responsibility would be acceptable to the Crown. However, the defence were not willing to advance such a plea. Psychiatric reports were obtained from four doctors, but none was placed before the jury. Accordingly when the matter came to trial the judge, Peter Pain J, directed the jury that since the defence had not sought to argue diminished responsibility, they could safely take it that the defendant was a person who had to be regarded as fully responsible for his actions.

On rearraignment on 29 January 1980 the appellant pleaded “not guilty to murder but guilty of manslaughter”. The plea was advanced on the basis of provocation, which was not acceptable to the Crown. The trial proceeded, the only issue being provocation. At that time the most recent decision of the House of Lords on the relevant principles was Camplin [1978] AC 705. The judge directed the jury that they should apply a double test:

“First of all, was the Defendant provoked so as to lose his self-control? Secondly, would a reasonable man have done as the Defendant did?”

Dealing with the second limb of the test, the judge directed the jury to apply the standard of self-control to be expected of a reasonable man.

The CCRC referred this appeal on the ground that the legal position had been changed by the decision in Morgan Smith. That decision rendered relevant and admissible psychiatric evidence demonstrating that the appellant’s ability to control his behaviour was impaired. The psychiatric evidence that was not adduced at the trial, together with two further psychiatric reports, might result, on the application of the approach laid down by Morgan Smith, in the defence of provocation succeeding.

The decision in Holley has supervened since the reference by the CCRC. It was common ground between counsel that, if we ruled that Morgan Smith should be followed, this appeal should be allowed but that, if we ruled that Holley should be followed, this appeal should be dismissed. As the latter is the position this appeal must be dismissed.

The appellant joined the Communist Freedom Fighting Movement in Kurdistan in 1984. He married Mehri Rezai, a member of the same movement, two years later, and they had two children.

In 1990, having been injured whilst fighting in Kurdistan, the appellant moved to Sweden. His wife joined him there a year later. Their relationship began to deteriorate. The appellant returned to Kurdistan in about 1992, where he fought for a further short period. His wife came to England in April 1994 and the appellant joined her in October of that year. The relationship did not improve. In February 1996, the appellant moved out of the family home and took a room in a YMCA hostel. He enrolled on a full-time course to learn English and became friendly with a man called Sirvan Kabadi, whom he was subsequently to kill. He also had been a freedom fighter in Kurdistan.

The appellant’s wife met Mr Kabadi in August 1996 through the appellant. They became lovers in the autumn of 1996. On 4 December 1996, his wife told the appellant that their relationship was over and he left the house in an emotional state. She was concerned about his welfare and telephoned the YMCA, fearing that he might commit suicide.

On 6 December, the appellant’s wife had arranged to meet with Mr Kabadi in the afternoon, but he contacted her and told her not to come because the appellant was coming then to help him fill in application forms. In consequence, she arranged to see Mr Kabadi later.

Earlier during that day, the appellant and Mr Kabadi had been seen to be getting on well without any indication of animosity. At 3.15pm, as shown by the security video on Mr Kabadi’s block of flats, the appellant entered that block. Sixty-five minutes later he left, having killed Mr Kabadi with a knife in a frenzied attack from behind. There were numerous stab wounds; the most severe injury was the cutting of the deceased’s throat.

When questioned by police the following day the appellant immediately admitted the killing and helped in the search for the knife. He was arrested. In his possession was a Stanley knife, which he said he had just bought to kill himself.

The appellant gave an account of the killing to his wife, in part at a meeting immediately prior to his arrest, and in part in telephone conversations with her (covertly taped by the police) from the hospital where he was detained. When he was formally interviewed by the police, he made no comment.

It was the prosecution case that the appellant killed Mr Kabadi with the intention to kill or cause grievous bodily harm. The defence case was that the deceased had come at the appellant with a knife and sworn a particularly insulting phrase ‘Besharef’ meaning “You have no honour”. The appellant claimed to have disarmed the deceased and then, using the knife, killed him. The defences advanced were (i) that his responsibility was diminished because of post-traumatic stress disorder; (ii) provocation and (iii) self-defence. The significant issues for the jury were whether the appellant had been provoked and whether he was suffering from diminished responsibility.

The appellant was tried in July 1997 before Blofeld J and a jury at St Albans Crown Court. At that time the most recent decision of the House of Lords on provocation was Morhall [1996] AC 90. The judge gave a similar direction to the jury on the law of provocation that included the following passage in respect of the second limb of the test:

“If, however, your answer to that question is: yes, then you must go on to consider secondly: may that provoking conduct, whatever you find it to be, have been such as to cause a reasonable and sober person of the defendant’s age: 40ish, sex: - male, and special characteristics: - that he is a Kurdish freedom fighter with a background of trauma in Kurdistan which you look at as a whole, may that provoking conduct have been such as to cause a reasonable and sober person of the defendant’s age, sex and special characteristics to do as this defendant did? A reasonable person is simply a person who has that degree of self-control which is to be expected of an ordinary citizen who is sober, but has, also, this defendant’s same age, sex and special characteristics.”

On 29 July 1997 the appellant was convicted of murder by a majority of 10 to 2 and sentenced to life imprisonment. The single judge refused permission to appeal to this court and an application to extend time for a renewed application to the full court was refused on 1 May 1998.

On 27July 2000 the House of Lords gave judgment in Morgan Smith [2001] 1 AC 146.

On 20 June 2003 the Criminal Cases Review Commission referred Mr Karimi’s conviction to this court. The appeal was heard on 9February 2005 before the Vice-President (Rose LJ), Smith LJ and Butterfield J. An application to adduce fresh evidence from two psychiatrists was refused. It was common ground, as the judgment records, that “the safety of the appellant’s conviction for murder must be judged by reference to the law of provocation as it is now understood and applied”. The court concluded that in the light of Morgan Smith there had been a material misdirection in respect of the second limb of provocation, in that the judge had limited the relevant characteristics of the appellant to his background in Kurdistan. Accordingly the appeal was allowed and the conviction quashed. As the court considered that on the facts it was inappropriate to substitute a verdict of manslaughter by reason of provocation, a retrial was ordered.

On 15 June 2005 the Judicial Committee of the Privy Council delivered its advice in Holley. The retrial began on 5September 2005 at the Central Criminal Court before His Honour Judge Focke QC and a jury. Following legal argument in the absence of the jury the judge ruled that, on the issue of provocation, he ought to follow Holley in preference to Morgan Smith. He accompanied his summing-up with written directions on provocation which accurately followed Holley. The second limb of the test was stated as follows:

“(2)

In your opinion, having regard to the actual provocation and your views of its gravity for the defendant, decide whether a man of the defendant’s age, having ordinary power of self-control might have done what the defendant did.

If the answer to that question is ‘Yes’ then the verdict is not guilty of murder but guilty of manslaughter.

If the answer to that question is ‘No’ then the verdict would be guilty of murder. ”

The jury convicted the appellant of murder. Before us the grounds of appeal were simply that the judge had erred in directing the jury in accordance with Holley rather than in accordance with Morgan Smith. For the reasons that we have given, we have concluded that the judge was correct to follow Holley. For that reason this appeal also must be dismissed.