Law Report: Classic direction to jury on provocation defence upheld: R v Ahluwalia - Court of Appeal (Criminal Division) (Lord Taylor of Gosforth, Lord Chief Justice, Mr Justice Swinton Thomas and Mr Justice Judge), 31 July 1992

A judge's direction to a jury in a murder trial, defining 'provocation' as conduct causing 'a sudden and temporary loss of self-control' was in accordance with well established law and could not be faulted. If that law was wrong, it was for Parliament to change it, not the courts.

The Court of Appeal (Criminal Division) allowed (on a different ground) an appeal by Kiranjit Ahluwalia and quashed her conviction, at Lewes Crown Court on 7 December 1989, for the murder of her husband, Deepak, on 9 May 1989. A retrial was ordered, to take place at the Central Criminal Court in London, pending which the appellant was denied bail.

Geoffrey Robertson QC and Andrew Nicol (R R Sanghvi, Wembley) for the appellant; Robert Harman QC (CPS) for the Crown.

LORD TAYLOR LCJ, giving the reserved judgment of the court, said that from the outset of her arranged marriage to the deceased, the appellant had suffered violence and abuse and had undoubtedly been treated very badly by him over a long period.

On the night of 8/9 May 1989 the deceased returned home about 10.15 pm. Having given him his dinner, the appellant tried talking to him about their relationship but he refused, indicating that it was over. He demanded money, threatening to beat if she did not give him pounds 200 next morning. He then began to iron some clothes and threatened to burn her face with the hot iron if she did not leave him alone.

The appellant went to bed about midnight but was unable to sleep and brooded on the deceased's behaviour. Sometime after 2.30am she got up, went downstairs, poured about two pints of petrol into a bucket, lit a candle on the gas cooker, went back upstairs to the deceased's room, threw in some petrol and set it alight. He sustained terrible burns from which, after lingering painfully for six days, he died.

At her trial she did not give evidence and no medical evidence was adduced on her behalf. Her case was that she did not intend to kill or seriously harm her husband, only to inflict some pain. Provocation was a secondary line of defence, based on the whole history of ill- treatment throughout the marriage, culminating in his behaviour on the night in question. The defence sought a verdict of manslaughter, but the jury convicted her of murder. The first ground of appeal was that the judge had misdirected the jury on provocation. He directed them in accordance with the classic definition of provocation, in R v Duffy (1949) 1 All ER 932, as conduct 'which would cause in any reasonable person and actually causes in the accused, a sudden and temporary loss of self-control . . .'

The appellant's case was that, following the enactment of section 3 of the Homicide Act 1957, as explained by the House of Lords in DPP v Camplin (1978) Cr App R 14, the Duffy direction was now wrong.

In Camplin's case, Lord Diplock referred to section 3 as abolishing 'all previous rules of what can or cannot amount to provocation'; but he did not, it should be noted, redefine provocation itself. Camplin's case was concerned with the objective element in provocation, the 'reasonable man' limb of the defence, and although Duffy's case was cited none of the Law Lords suggested it was wrong. Nor had any decision since so suggested.

On the contrary, there had been a consistent line of binding authority approving the use of the phrase 'sudden and temporary loss of self-control'. It encapsulated an essential ingredient of the defence of provocation in a clear and readily understandable phrase.

It was said on the appellant's behalf that the phrase might lead the jury to think provocation could not arise for consideration unless the defendant's act followed immediately upon the act or words constituting the alleged provocation, and that although an interval of time might in many cases be a time of 'cooling off' and regaining self-control, so as to forfeit the protection of the defence, in other cases, particularly those of long-abused women, the time lapse might have the opposite effect, marking a 'slow-burn' reaction rather than an immediate loss of self-control.

Their Lordships recognised that the subjective element in the defence of provocation would not, as a matter of law, be negatived simply because of the delayed reaction in such cases, provided there was at the time of the killing a 'sudden and temporary loss of self-control' caused by the alleged provocation.

However, the longer the delay, and the stronger the evidence of deliberation on the defendant's part, the more likely it was that provocation would be negatived. Here, despite the lapse of time, the judge left the issue of provocation to the jury, and his direction to them was in accordance with well established law.

Their Lordships also rejected a second ground of appeal, alleging that the judge's summing up failed adequately to deal with the appellant's characteristics, in so far as they affected the gravity of the provocation, in omitting to mention the 'learnt helplessness' associated with what was described as 'battered woman syndrome'. There had been no evidence before the judge and jury to support this.

The final ground of appeal, based on diminished responsibility, was successful. This defence had not been raised at the trial, but there was evidence in a doctor's report suggesting the appellant was suffering a 'major depressive disorder' at the material time. It was unclear why this material was not further pursued at the time of the trial or why the accused herself was not consulted about it. In the light of this evidence, however, and in the exceptional circumstances, the verdict must be regarded as unsafe and unsatisfactory.