Man Test for Criminal Cases - Essay Example

The reasonable man test is a method by which a defendant’s level of self-control is measured in the prosecution of criminal cases. Lord Diplock defined the reasonable man as ‘…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. . .’1 In practice however, the concept of the reasonable man is merely an anomaly since as is quite often the case the courts have held that it is not possible to ignore certain special characteristics of a single defendant and substitute some hypothetical version of the ideal man or woman. In Camplin [1978] Lord Simon said ‘it is one thing to invoke the reasonable man for the standard of self-control which the law requires: it is quite another to substitute some hypothetical being from whom all mental and physical attributes (except perhaps sex) have been abstracted.’2 The reasonable man enigma has been the subject of much discussion in cases involving defences of provocation and demonstrates the extent to which this concept has from time to time been reduced by and large to a more subjective test. At times it appears to be more of a consideration of the level of control expected of the defendant, given his particular character traits. Section 3 of the Homicide Act 1957 provides that ‘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.’3 Prior to the implementation of Section 3 of the Homicide Act 1957 common law recognized the application of the reasonable man case but was more inclined to apply it in the strict sense. For instance in R v Lesbini [1914] 3 K.B. 1116 the defendant raised provocation as a defence and argued that although he was sane he was ‘afflicted with defective control and want of mental balance’ therefore the objective test could not apply to his case. The Court of Appeal rejected this argument and maintained that the standard to be applied was the reasonable man test, and that the objective level of self control of the ordinary man would apply.4 In Bedder v. DPP [1954] 2 All E.R. 801 the House of Lords adhered to the strict interpretation of the reasonable man test as applied in the Lesbini case. In Bedder the defendant who was impotent killed a prostitute who had mocked his impotence. At his trial he raised provocation as a defence. He argued that his impotence took him outside of the dynamics of the reasonable man. On appeal the House of Lords rejected that argument and held that the test was that of the reasonable man.5 However, the court backpedaled in the case of Camplin [1978] and basically redefined the concept of the reasonable man. In this case a fifteen year old boy was mocked by the decadent for exhibiting signs of shame and embarrassment after having engaged in anal sex. The boy was moved to anger to such and extent that he killed the decadent by hitting him in the head with a weapon which crushed the victim’s skull.6 Lord Diplock expressed the view that it would be entirely unfair to strictly apply the reasonable man test while ignoring specific character traits of the accused person. He said, ‘it would stultify much of the mitigation of the previous harshness of the common law in ruling out verbal provocation as capable of reducing murder to manslaughter if the jury could not take into consideration all those factors which in their opinion would affect the gravity of taunts or insults when applied to the person whom they are addressed. So to this extent at any rate the unqualified proposition accepted by this House in Bedder v. Director of Public Prosecutions [1954] 1 W.L.R. 1119 that for the purposes of the reasonable man test any unusual physical characteristics of the accused must be ignored requires revision as a result of the passing of the Act of 1957.’7 The reasonable man was redefined to mean a person with the power or level of self control attributed to the ordinary person who was the same gender and age of the person on trial, ‘but in other respects sharing such of the accuseds 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.’8 In R v Morhall [1996] A.C. 90 the House of Lords reconstructed the reasonable man test to such an extent that it was virtually substituted by a more subjective test. It is decisions such as this that compromise the extent to which the reasonable man exist in criminal law. In R v Morhall, the victim taunted the defendant about his glue-sniffing addiction. The House of Lords had to determine whether the addiction was such that it ought to have been considered in assessing the defendant’s defence of provocation.9 Lord Goff with whom the remaining lords in the House of Lords agreed submitted that the addiction ought to have been taken into account. In fact, Lord Goff was of the opinion that ‘the entire factual situation’ was relevant.10 The entire factual situation would not be limited to characteristics but would also include matters which might not be to the defendant’s credit. He went on to say ‘. . . [S]uppose that a man who has been in prison for a sexual offence, for example rape, has after his release been taunted by another man with reference to that offence. It is difficult to see why, on ordinary principles, his characteristic or history as an offender of that kind should not be taken into account as going to the gravity of the provocation.’11 In R v Morgan Smith [2001] 1 A.C. 146 the House of Lords abandoned the concept of the reasonable man altogether making allowances for the consideration of any of the defendant’s own characteristics to be applied to the reasonable man test. In other words a wholly subjective test was permitted as a standard for all cases. Lord Hoffman explained that ’…the jury may think that there was some characteristic of the accused, whether temporary or permanent, which affected the degree of control which society could reasonably have expected of him and which it would be unjust not to take into account. If the jury take this view, they are at liberty to give effect to it.’12 The Morgan Smith decision however has been severely criticized and there appears to be a reversion to the more quasi reasonable man test. The position submitted by professor Ashworth in his article “The Doctrine of Provocation,” 35 Cambridge Law Journal 292, at 300 (1976) appears to be a more accurate representation of the applicable test. Profession Ashworth said that ‘the proper distinction . . . is that individual peculiarities which bear on the gravity of the provocation should be taken into account, whereas individual peculiarities bearing on the accused’s level of self-control should not.’13 The difficulty with the Morgan Smith decision is that it invites a departure from the standards of consistency required of the criminal justice system. This obscuring of the reasonable man test opened the door for a tailored standard to be applied to individual defendants in individual cases. What we were left with was a purely undesirable method of excusing conduct based on a pattern of behavior which was criminal in nature. For instance, based on the Morgan Smith test a man who was predisposed to ill-temper and violent outbursts might be expected to lose his control in the circumstances of a particular case where an ordinary man of ordinary temperament might not. Based on the Morgan Smith test, a man of ill temper might be excused whereas a man of ordinary temperament might not. The Privy Council in Attorney-General for Jersey v. Holley [2005] 3 All E.R. 371 abandoned the Morgan Smith test and restored the previous reasonable man test with some application of the particular circumstances. Lord Nicholls said, ‘under the statute the sufficiency of the provocation ... 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’.’14 As it now stands in English criminal law, the concept of the reasonable man was restated in R v James and Karimi [2006] EWCA Crim 14. This concept mirrors that of the Privy Council’s position in the Holley case. The test basically permits the consideration of the level of control expected or an ordinary man of ordinary temperament, the defendant’s age together with all the circumstances of the particular case ‘other than matters whose only relevance to the defendant’s conduct is that they bear simply on his or her general capacity for self-control.’15 The concept of the reasonable man test can only be said to be consistent with the ordinary meaning of the word ‘reasonable’ if it is applied strictly in all cases. As seen in the Camplin case the strict application of the reasonable man test would produce rather unjust results. On the other hand too far a departure from the strict application of the test would also produce unfair results, permitting entirely criminal conduct to be excuses when it would be entirely unconscionable to do so. Therefore the standard set by R v James and Karini which permits consideration of the circumstances of the case while disallowing excuses such as a predisposition to ill temper, is fair and permits the application of the reasonable man test as far as possible to meet the ends of justice. Bibliography Attorney-General for Jersey v. Holley [2005] 3 All E.R. 371 Ashworth, Andrew J. “The Doctrine of Provocation,” 35 Cambridge Law Journal (1976) 292, at 300 Bedder v. DPP [1954] 2 All E.R. 801 Camplin [1978] A.C. 705 Homicide Act 1957 Law Commission, “A New Homicide Act for England and Wales?” (Law Com. Consultation Paper No. 177, 2005) R v Lesbini [1914] 3 K.B. 1116 R v Morgan Smith [2001] 1 A.C. 146 R v Morhall [1996] A.C. 90 Read More