Reasonable man

From CrimeLine from Andrew Keogh

Smith, R v. [2000] UKHL 49; [2001] 1 AC 146; [2000] 4 All ER 289; [2000] 3 WLR 654 (27th July, 2000) Thus the test of liability in negligence was explained by reference to 'the man on the Clapham omnibus'. When the phrase 'reasonable man' (coming from 19th Century cases such as Reg. v Welsh (1869) 11 Cox 336) is used in s. 3, the common lawyer immediately tries to visualise and define some physical human being with identified characteristics (apparently both reasonable and unreasonable) whereas what the phrase is doing is identifying a concept, a standard of self-control.

The word "reasonable" in section 3 (Homicide Act 1957) was adopted by the draftsman of the statute from the earlier judicial terminology. (e.g. Reg. v Welsh (1869) 11 Cox 336.) It was, and is, a concept used not infrequently in the criminal law to prevent a legitimate defence from becoming a licence to commit crimes. See: Smith, R v [1998] EWCA Crim 2291 (10th July, 1998)

"The origin of the defence lay in the belief that if a man was so provoked as suddenly to lose all reason and self-control justice or "compassion" required that there should be a verdict of manslaughter rather than of murder which attracted the death penalty. Certain categories of act, such as an insulting assault or seeing one's friend being grievously attacked, came to be recognised as constituting provocation. From the end of the 19th century and during the 20th century, however, the question became not only whether the provocation caused the loss of control which itself led to the fatal blow but also whether the jury considered that the provocation would have caused a reasonable man to lose his self control Reg. v. Welsh (1869) 11 Cox 336.” See: Smith, R v. [2000] UKHL 49; [2001] 1 AC 146; [2000] 4 All ER 289; [2000] 3 WLR 654 (27th July, 2000)

There are judicial decisions both ways. For example in Luc Thiet Thuan v. The Queen [1997] A.C. 131 the majority in the Privy Council and in Reg. v. Morhall [1996] A.C. 90 the House of Lords underlined the need for an objective test in looking at the reasonable man. He must not be transformed into a replica of the individual defendant. In these two cases, it was however, accepted that personal characteristics could be taken into account when assessing the gravity of the provocation. On the other hand in Reg. v. McGregor [1962] N.Z.L.R. 1069 and in a number of judgments of the Court of Appeal here it has been recognised, as it was by Lord Steyn dissenting in Luc Thiet Thuan, that in considering whether a reasonable man would have reacted as the accused did, some personal characteristics can be taken into account: (See in the Court of Appeal Reg. v. Newell (1980) 71 C.A.R 331 (Lord Lane C.J.) Reg. v. Raven [1982] C.L.R. 51, Reg. v. Ahluwalia [1992] 4 All E.R. 889, (Lord Taylor of Gosforth C.J.) Reg. v. Dryden [1995] 4 All E.R. 987, Reg. v. Humphreys [1995] 4 All E.R. 1008, Reg. v. Thornton (No. 2) [1996] 2 All E.R. 1023. (See also Reg. v. Campbell [1997] 1 Cr.App.R. 199, the comments of Lord Bingham C.J.). Smith, R v. [2000] UKHL 49; [2001] 1 AC 146; [2000] 4 All ER 289; [2000] 3 WLR 654 (27th July, 2000)

Attorney General for Jersey v. Holley

Attorney General for Jersey v. Holley (Jersey) [2005 UKPC 23 (15 June 2005)

4. By section 3 of the Homicide Act 1957 Parliament altered some aspects of this common law defence. Jersey law has a corresponding provision in article 4 of the Homicide (Jersey) Law 1986. Section 3 provides:

"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."

5. Thus, in line with the common law, section 3 envisages that the defence of provocation has two ingredients. The first ingredient, known as the subjective or factual ingredient, is that the defendant was provoked into losing his self-control. This concept is not without its own difficulties, but it is not necessary to pursue them on this occasion. Suffice to say, in deciding whether this ingredient exists in a particular case all evidence which is probative is admissible. This includes evidence of any mental or other abnormality making it more or less likely that the defendant lost his self-control.

6. The second ingredient, often called the objective or evaluative ingredient, raises, in the language of the statute, "the question whether the provocation was enough to make a reasonable man do as he did ... [taking] into account everything both done and said according to the effect ... it would have on a reasonable man". Broken down, this objective ingredient has two elements. The first element calls for an assessment of the gravity of the provocation. The second element calls for application of an external standard of self-control: "whether the provocation was enough to make a reasonable man do as he did".

7. The statutory reference to a 'reasonable man' in this context is, by common accord, not the best choice of words. It is difficult to conceive of circumstances where it would be 'reasonable' for a person to respond to a taunt by killing his tormentor. Rather, the phrase is intended to refer to an ordinary person, that is, a person of ordinary self-control.

8. This interpretation is now well-established. In the leading case of R v Camplin [1978] AC 705, 717, Lord Diplock gave a much quoted explanation of the meaning of the phrase "reasonable man" for the purposes of the law of provocation:

"It means an ordinary person of either sex, not exceptionally excitable or pugnacious, but possessed of such powers of self-control as everyone is entitled to expect that his fellow citizens will exercise in society as it is today."

"In a number of reported cases it was stipulated that an act, to be recognised in law as provocative and so potentially giving rise to the defence of provocation, must attain a certain degree or level of seriousness and gravity: see, for example, R v Mawgridge(1707) Kel 119, 132, per Holt CJ; R v Welsh (1869) 11 Cox CC 336, 338-339, per Keating J; R v Selten (1871) 11 Cox CC 674, 675; R v Alexander (1913) 9 Cr App R 139, 141. This requirement, applied at a time when words and gestures alone could not be recognised in law as provocative (R v Mawgridge, above, pp 130 - 131), no doubt provided a salutary safeguard against partial exoneration of the short-tempered and the over-sensitive, those whom Viscount Simon LC was later to describe in Mancini v Director of Public Prosecutions [1942] AC 1, 9, as "unusually excitable or pugnacious". The reasonable man was, as Lord Diplock observed in Camplin, above, at p 714, "a comparatively late arrival in the law of provocation". The objective comparison between the defendant and the reasonable man appears to have been first articulated by Keating J, summing up to the jury in R v Welsh, above, pp 338-339, a case in which, if there was any provocative conduct at all by the deceased, it was of the slightest, and the emphasis of the judge's direction, understandably enough, was on the need for the provocation to be "serious"." Attorney General for Jersey v. Holley (Jersey) [2005 UKPC 23 (15 June 2005)

Law Commission

• Law Com Partial Defences to Murder (Consultation Paper) [2003] EWLC 173 (15 October 2003): Partial defences to murder
• Law Com Part 11 Defences to Murder (Consultation Paper) [2003] EWLC 173(2) (15 October 2003): Statistics and empirical studies
• Law Com Part 111 Partial Defences to Murder (Consultation Paper) [2003] EWLC 173(3) (15 October 2003): The history of the development of the partial defence of provocation