“(1) permission to appeal be REFUSED as the evidence of Dr Latham does not justify the grant of permission in circumstances where it recognises the need for a psychological assessment to be carried out and recommends a further psychiatric assessment. If such evidence becomes available and supports an appeal the Board would be prepared to reconsider the matter without prejudice to the other arguments raised by both the Appellant and the Respondent.”
“4B. 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”
“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. 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.’ 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.”
“It is trite law that at common law provocation has for decades involved a two-stage inquiry. First, may the accused have killed when he had lost control of himself as a result of provocative behaviour by someone else? That is an inquiry about this accused on this occasion; it is sometimes described as a subjective inquiry. Second, if yes, might a reasonable person possessed of the ordinary powers of self-control to be expected of someone of his age and sex have reacted to the provocation as the accused did? This is an objective test for the jury and is the means by which the partial defence is limited to those for whose actions there is a limited, but reasonable, excuse. In the past difficult questions have arisen over the qualities to be attributed to the hypothetical reasonable person; those do not arise in this case and are in any event largely answered by the decision of the Board in Attorney General for Jersey v Holley … In some parts of the common law world, codification of the criminal law has significantly modified one or other of the two core elements of provocation, which fact may need to be remembered when one is considering decisions from other jurisdictions, but for the present the conventional two-stage inquiry is the one with which the Board is concerned.”
“First, you must ask yourself whether the accused was so provoked, whether he was provoked in the legal sense. A person is provoked if he is caused by things that have been said and/or done by the deceased or by any other person to suddenly and temporarily lose his self-control. I repeat the definition of provocation, this is the definition of provocation. A person is provoked if he is caused by things that have been said and/or done by the deceased, or by another person, to suddenly and temporarily lose his self-control. If you are sure the accused was not provoked in that sense, that it was not caused by something or things said or done by the deceased, Sandra Miller, and her fiance (sic) Lawrence Stewart, or by any other person, then the defence of provocation does not arise and Uriah Woods is guilty of murder. But if you conclude so that you are sure that Uriah Woods was, or might have been provoked in the sense that I have explained, and that as a result of provoking words and/or conduct he suddenly lost his self-control, you must then weigh how serious the provocation was for this accused. Now, the final part of your consideration would be, is there anything you have heard or anything you have been told about the accused which may have made what was said or done affect him more than it might any other man? Having regard to the actual provocation, and to your view as to how serious that provocation was for the accused, you must ask yourselves whether a person with the powers of self-control which are to be expected of an ordinary, sober, reasonable or normal person of the accused’s age and sex, would have been provoked to lose his control and do exactly as Uriah Woods did on the night of the 14th July. …Therefore, the ordinary, sober, reasonable or normal person in this context is a person who is not exceptionally excitable or eager or quick to argue or quarrel or fight. The ordinary sober, reasonable or normal person is possessed of such powers of self-control as everyone is expected to have from their fellow citizens. The powers of self-control each of you is expected to have is what we are dealing with. If you are sure that such a person, as I have described to you, would not have done as Uriah Woods did in the given circumstances, then the Prosecution would have disproved or negatived provocation, and the accused is guilty of murder. If, however, you conclude that an ordinary, sober, reasonable or normal person of the accused’s age and sex would or might have been provoked to lose his self-control in similar circumstances, and that such a person would or might have gone on to do exactly as the accused did, then in such a case your verdict would be one of not guilty of murder, but guilty of manslaughter by reason of provocation. … Were the actions of the accused of chopping Sandra Miller 22 times, and chopping off the foot of his son, were these actions what are to be expected of a reasonable man placed in those circumstances? That is the question you must ask yourself. … Now, this is what the accused has placed before you for consideration, that he suffered a sudden and temporary loss of self-control. He has asked you to accept the evidence he has given and find him not guilty of murder, but guilty of manslaughter. You must consider whether a person with the normal powers of self-control which are to be expected of the ordinary person, sober, reasonable or normal person of the accused’s age and sex would have done exactly as he did?”
“the conduct of the deceased to the accused must be such as (1) might cause in any reasonable or ordinary person and (2) actually causes in the accused a sudden and temporary loss of self-control as the result of which he commits the unlawful act that kills the deceased”
“In deciding the question whether this was or was not the case, regard must be had to the nature of the act by which the offender causes death, to the time which elapsed between the provocation and the act which caused death, to the offender’s conduct during that interval, and to all other circumstances tending to show the state of his mind.”
“The test to be applied is that of the effect of the provocation on a reasonable man, as was laid down by the Court of Criminal Appeal in Rex v Lesbini, so that an unusually excitable or pugnacious individual is not entitled to rely on provocation which would not have led an ordinary person to act as he did. In applying the test, it is of particular importance (a) to consider whether a sufficient interval has elapsed since the provocation to allow a reasonable man time to cool, and (b) to take into account the instrument with which the homicide was effected, for to retort, in the heat of passion induced by provocation by a simple blow, is a very different thing from making use of a deadly instrument like a concealed dagger. In short, the mode of resentment must bear a reasonable relationship to the provocation if the offence is to be reduced to manslaughter.”
“… when considering whether the provocation was enough to make a reasonable man do as the accused did it is relevant for a jury to compare the words or acts or both of these things which are put forward as provocation with the nature of the act committed by the accused. It may be for instance that a jury might find that the accused’s act was so disproportionate to the provocation alleged that no reasonable man would have so acted. We think therefore that a jury should be instructed to consider the relationship of the accused’s acts to the provocation when asking themselves the question ‘Was it enough to make a reasonable man do as he did?’”
“A crucial factor in the defence of provocation from earliest times has been the relationship between the gravity of provocation and the way in which the accused retaliated, both being judged by the social standards of the day.”
“… the question is not merely whether such a person [the reasonable man] would in like circumstances be provoked to lose his self-control but also whether he would react to the provocation as the accused did.”
“This does not rub the point in, and the jury might not fully understand its significance (they might, conceivably, interpret the words ‘react as the accused did’ to refer merely to the fact of killing). But that is only a matter of expression: a judge who spelt out the modal rule for the jury in clearer language would evidently be upheld.”
“Thirdly, the section provides that 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. This part of the section provides for an external or objective standard. This provision is explained by the concluding provision that in determining the objective question the jury shall take into account everything done and said according to the effect which, in their opinion, it would have on a reasonable man. The purpose of this part of the section is well settled. After the adoption of the reasonable man test in the second half of the last century, judges withdrew cases where the defendant wished to rely on provocation on the basis of rules or supposed rules which were judicially developed. By converting common sense criteria into fixed rules of law judges empowered themselves to invoke those rules to withdraw cases from the jury. Thus the rule was laid down that disproportionate retaliation may bar the defence, or as it was later put, that the retaliation must bear a reasonable relationship to the provocation received: [Mancini]; [Duffy]; see also generally [Logan]. Plainly proportionality was a highly relevant matter to a defence of provocation. But the perceived mischief was that judges withdrew cases from the jury on the ground of fixed rules of law. In [Camplin] the House of Lords held that section 3 abolished all previous rules linked with the objective requirement as to what can or cannot amount to provocation: … At the same time section 3 abolished the power of the judge to withdraw provocation as an issue on the ground that there was no evidence on which the jury could find that a reasonable man would have been provoked as the defendant was: [Camplin]. Henceforth the objective requirement was to be regarded as an issue of fact, or more realistically, as a matter of opinion, within the sole province of the jury.”
“… although there is no longer a rule of proportionality as between provocation and retaliation, the concept of proportionality is nevertheless still an important factual element in the objective inquiry. It necessarily requires of the jury an assessment of the seriousness of the provocation.”
“This is similar to self-defence. There must be some proportion between the retaliation by the accused and the actual provocative acts. And again I could use the same example I used with self-defence. If someone slaps you that may be a provocative act, but that wouldn’t cause a reasonable man to take a knife and stab the other person in return.”
“We are also of opinion that the defence of provocation should not depend upon the particular mode by which the victim was injured or killed. To this extent the ‘reasonable relationship’ test will go. The question for the jury will be whether the provocation presented to the defendant was a sufficient ground for such loss of self-control as resulted in his killing the deceased.”
“Provided always that in no case shall the crime be reduced from murder to manslaughter, by reason of provocation, unless the jury find: (a) That such provocation was not intentionally caused by any word or act on the part of the accused; (b) That it was reasonably calculated to deprive an ordinary person of the power of self-control, and did in fact deprive the accused of such power, and (c) That the act causing death was done suddenly, in the heat of passion caused by such provocation, without intent to take life.”
“Having considered the reported cases and the writings on this matter I have come to the conclusion that the proportion of the fatal act to the provocation is part of the material on which the jury should consider whether the provocation offered the accused was such as would have caused an ordinary man, placed in all the circumstances in which the accused stood, to have lost his self-control to the point of doing an act of the kind and degree of that by which the accused killed the deceased. That proportion is not, in my opinion, a separate matter to be considered after it has been decided that an ordinary man would have lost self-control in the circumstances by reason of the provocation. The relationship of the fatal act to the provocation is perhaps best expressed by saying that the provocation must be such as would lead an ordinary man in the accused’s circumstances to so lose his self-control as to do an act of the kind and degree as the act by which the accused killed the deceased.”
“… as Barwick CJ pointed out in Johnson v The Queen in considering whether an ordinary person could have reacted in the way in which the accused did, it is the formation of an intent to kill or do grievous bodily harm which is the important consideration rather than the precise form of physical reaction.”
“It would be wrong for the Judge therefore to suggest that there is any requirement of reasonably proportionate retaliation. Lack of proportionality may however, as a matter of common sense, be evidence which in the particular case may help the jury to determine whether or not the accused committed the homicide under provocation. If the Judge does not suggest that the jury must consider the question of proportionality, it will not usually cause a miscarriage of justice if the jury is reminded that it can look at whether the retaliation bore any relation to the provocation in deciding whether in fact the accused was provoked into the attack. But it will usually be unnecessary to make any specific reference.”
“It is important to note that on this question the actual mode of response of the accused to the provocation is irrelevant. This is the key point. The question now being addressed is not whether the accused did lose the power of self-control; rather it is whether the provocation was sufficient to cause the hypothetical person to do so. The accused’s actual response is no more than a distraction on this issue. The question concerns the response of the hypothetical person to the provocation actually found to have been given. Hence a direction which invites a comparison between the level of provocation and the accused’s response to it is inappropriate and apt to cause confusion on this second (evaluative) question.”
“113. That being the case, it is difficult to see a proper basis for concluding that meaning (4) (the precise method of killing meaning) can be the correct construction of 'do as he did'. The conceptual difficulties in seeking to find a relationship between provocation that brings about a loss of self-control triggering a homicidal reaction with the reasonableness of the choice of weapon or mode of carrying out a murderous intent weighs against the conclusion that meaning (3) (the mode of killing meaning) is the proper construction of those words. 114. In the light of the context and purpose of section 4 and the underlying policy of the law to mitigate the penal consequences of a killing carried out in the frenzy of a loss of self-control, meaning (2) (the killing simpliciter meaning) provides the most logical and readily understandable meaning of the words 'do as he did'. This requires the jury to consider whether, in the light of the gravity of the provocation on a person in the position of the defendant but with the ordinary powers of self-control to be expected in society today, that person might have formed the intention to kill or cause grievous bodily harm to the victim and have acted on that intention. This is a simpler test in which the magnitude of the response is absorbed into the evaluation of whether the provocation was sufficient to cause a person with ordinary powers of self-control to lose that self-control to the point of forming the intent to kill or cause grievous bodily harm and acting on that intent. It avoids the need for illogical and extremely difficult mental gymnastics on the part of the jury in trying to grade degrees of provocation and degrees of reasonable retaliation to such provocation. The defence of provocation is neither intended to be, nor capable of being, a matter of scientific measurement. Rather, it is intended that juries apply their common sense to the evidence to determine the result in any given case.”
“In addressing the issue whether [those words/that conduct] was or may have been such as to cause an ordinary person to do as the defendant did, it is not a question of whether that ordinary person might have reacted in exactly the same way as the defendant did. It is sufficient were you to find that the provocation which was presented would or might cause an ordinary person, placed in the same situation as the defendant, to lose self-control and cause [the victim’s] death with the intention of doing so or at least with an intention to cause really serious bodily harm. If that is what you find, then you must find the defendant not guilty of murder but guilty of manslaughter and the possibility that the ordinary man would not have [stabbed 200 times but only say ten times] / [used the chopper but might have used some other implement] is irrelevant.”
“… counsel for the appellant contended, not as a matter of construction but as one of logic, that once a reasonable man had lost his self-control his actions ceased to be those of a reasonable man and that accordingly he was no longer fully responsible in law for them whatever he did. This argument is based on the premise that loss of self-control is not a matter of degree but is absolute; there is no intermediate stage between icy detachment and going berserk. This premise, unless the argument is purely semantic, must be based upon human experience and is, in their Lordships’ view, false. The average man reacts to provocation according to its degree with angry words, with a blow of the hand, possibly if the provocation is gross and there is a dangerous weapon to hand, with that weapon. It is not insignificant that the appellant himself described his own instantaneous reaction to the victim’s provocation in spitting on his mother as ‘I spin around quickly was to punch her with my hand.’”
“… you must ask yourselves whether a person with the powers of self-control which are to be expected of an ordinary, sober, reasonable or normal person of the accused’s age and sex, would have been provoked to lose his control and do exactly as Uriah Woods did on the night of the 14 July.” “If you are sure that such a person, …, would not have done as Uriah Woods did in the given circumstances, then the Prosecution would have disproved or negatived provocation, and the accused is guilty of murder. If, however, you conclude that an ordinary, sober, reasonable or normal person of the accused’s age and sex would or might have been provoked to lose his self-control in similar circumstances, and that such a person would or might have gone on to do exactly as the accused did, then in such a case your verdict would be one of not guilty of murder, but guilty of manslaughter by reason of provocation”
“Were the actions of the accused of chopping Sandra Miller 22 times, and chopping off the foot of his son, were these actions that are to be expected of a reasonable man placed in those circumstances?”
“4A(1) Where a person kills or is a party to the killing of another, he shall not be convicted of murder if he is suffering from such abnormality of mind (whether arising from a condition of arrested or retarded development of mind or any inherent causes or induced by disease or injury) as substantially impaired his mental responsibility for his acts and omissions in doing or being a party to the killing.”
“By section 4A(2) the onus of establishing diminished responsibility is placed upon the defendant; as in the case of any other burden of legal proof which is laid upon a defendant, this is to be discharged by proof on the balance of probabilities. By section 4A(3) diminished responsibility, if established, reduces the offence from murder to manslaughter.”
“The Board considers that the proper basis on which admission of evidence should be decided is by the application of a sequential series of tests. If the evidence is not credible, it should not be admitted. If it is credible, the question then arises whether it is fresh in the sense that it is evidence which could not have been obtained for the trial with reasonable diligence. If the evidence is both credible and fresh, it should generally be admissible unless the court is satisfied at that stage that, if admitted, it would have no effect on the safety of the conviction. If the evidence is credible but not fresh, the court should assess its strength and its potential impact on the safety of the conviction. If it considers that there is a risk of a miscarriage of justice if the evidence is excluded, it should be admitted, notwithstanding that the evidence is not fresh.”
“although it should not be assumed that even highly persuasive evidence produced for the first time at the final appeal stage would be admitted, where a doubt remained about the correctness of the verdict which led to a penalty of death, any court would be bound to ensure that such doubt should either be removed or, if it could not, that it should prevail against the carrying out of that sentence; and that, accordingly, since fresh evidence as to the defendant’s fitness to plead raised a substantial issue about the fairness of his trial and the safety of his conviction it would be admitted and the case remitted to the Court of Appeal…”
“…the Board sees considerable force in the observations of both Archie CJ in Pitman and Narine JA in Hernandez that it is unsatisfactory that the mental condition of defendants should be raised for the first time only on appeal, and often many years after the trial. Very similar concerns were expressed by Lord Judge CJ in the English context in R v Erskine[2010] 1 WLR 183 . The admission of fresh evidence on appeal is a matter of discretion. Not only must the evidence appear credible but the explanation for its absence at the trial is very relevant to the exercise of discretion. The best prevention of such late appearance of medical evidence lies in the regular expert examinations, at an early stage, of all defendants facing murder charges. It must be for the individual jurisdictions to devise such means of seeking to achieve this as are practical in local conditions. It may nevertheless occasionally happen that fresh, and late, evidence is compelling, and that justice requires its admission.”
“46. In summary, Mr Woods has held and continues to hold beliefs about the deceased. These beliefs seem likely to have arisen before the offences. These beliefs relate to a perception of her infidelity as well as believing that she wanted and had tried to kill him by poisoning. These beliefs are likely to be relevant in understanding why he killed her although he does not seek to justify his actions on the basis of these beliefs. The difficulty however is twofold: i) Were they fixed and false beliefs (delusions) and ii) In the absence of any clear recollection from Mr Woods about his state of mind at the time, any opinion on the association between his beliefs and his actions at the time is difficult. However, it seems likely that if these beliefs are delusions, the diagnosis of delusional disorder is appropriate. This would then provide the foundation for the partial defence of diminished responsibility” (Emphases added) “49. …There are however some clinical factors that suggest he may be delusional even if there was a real event that served as a trigger. Delusionally jealous people often interpret small pieces of evidence in a way that is highly distorted. They may also seek these small pieces of evidence in a very determined way. Mr Woods was adamant that he could smell other people on his wife and that he could tell she was having sex with other men from her underwear. He was unshakeable in his beliefs about this. This kind of assertion is commonly seen in people who are delusionally jealous.” (Emphasis added.)
“59. In summary, Mr Woods has beliefs which, in my opinion, are likely to be delusional. These beliefs have been present for many years and if they are delusions lead to the medical diagnosis of delusional disorder. The case is unusual however in that I cannot categorically say that I know his beliefs are false. It may be, as is often the case with delusional disorder, that his delusions arose out of real events so that in his mind reality and delusion have become one. If my diagnosis is correct then these delusions were likely to have been relevant at every stage of his trial. I have recommend (sic) that there is a psychological assessment of Mr Woods’ intellectual function and personality traits. It may also be of assistance for there to be a second psychiatric assessment considering the issue of delusional disorder.” (Emphasis added.)
“Mr. Wood's general cognitive ability is within the "Extremely Low" range of intellectual functioning, scoring a Full Scale IQ (FSIQ) of 53. His overall thinking and reasoning abilities exceed those of only approximately 0.1% of individuals his age… Mr. Woods' FSIQ fell within the extremely low range indicating an Intellectual Development Disorder. An Intellectual Development Disorder is a neuro-developmental disorder that causes problems with intellectual tasks. Due to this, Mr. Woods may have difficulties in various areas such as learning, communicating, thinking rationally, understanding social cue ands, making judgements reading or expressing himself. He may also have disordered logic, challenges with problem-solving and planning. Mr. Woods’ Overall Executive Functioning is below average. This executive dysfunction indicates underdevelopment in the skills needed for the mental processes that enable him to focus attention, remember instructions, juggle multiple tasks successfully, regulate his emotions, and resist the urge to behave hastily due to frustration. Although Mr. Woods’ Intellectual functioning and conceptual skills may be classified as severe, his social and practical domain are slightly better developed. Therefore, his overall results indicate that Mr. Woods meet criteria for Intellectual Disability: Moderate.”
“suggests that out of 1000 individuals his age, 999 would have thinking and reasoning abilities which exceed his. This score is at the more impaired end of the mild intellectual disability range, which is considered to be from 50-70”
“Mr Woods’ belief regarding the victim of the index offence wishing to kill him and poisoning him in February 2005 to be a fixed false belief based on an inaccurate interpretation of an external reality, despite evidence to the contrary, which he has maintained for almost twenty years”. (3). As a person with an intellectual disability, the Appellant was more vulnerable to developing a delusional disorder. (4). There is no significant evidence of malingering or exaggeration. (5). “It is likely that both his intellectual disability and likely delusional disorder had a significant Impact on Mr Woods’ mental state and functional ability at the time of the index offence. The Appellant’s “mental disorders impaired his ability to form rationale (sic) judgement and impaired his behaviour and consideration of consequences at that time.”
“If Mr Woods is correct that his partner had multiple relationships for many years and that she was indeed trying to kill him by poisoning and possibly other means then he is not delusional and there is no diagnosis.”