Regina v Thornton

v.

THORNTON

COURT OF APPEAL, CRIMINAL DIVISION

BELDAM LJ, SAVILLE AND BUCKLEY JJ
22, 29 JULY 1991

Criminal law - Murder - Provocation - Acts constituting provocation - Domestic violence - Wife
killing husband following history of domestic -violence and assaults - No sudden and temporary
loss of self-control - Whether history of domestic violence amounting to provocation.

The appellant, who began to suffer from a personality disorder while at school, met her husband
in May 1987 and realised from the start of their relationship that he was a heavy drinker and was
jealous and possessive. In August 1988 they were married. There was a history of domestic
violence and assaults by the husband on the appellant and in May 1989 he committed a serious
assault on her which led to charges being laid. In June the appellant told a woman with whom
she worked that she was going to kill her husband. Later that month the appellant and the
husband had a series of rows over the husband's drinking. After one such row during which the
husband called the appellant a whore, the appellant went to the kitchen to calm down. While in
the kitchen she looked for something to provide protection in case she was attacked and picked
up a carving knife, sharpened it and went back to where the husband was lying on a sofa and
asked him to come to bed. The husband refused and said that he would kill her when she was
asleep. She replied that she would kill him before he ever got the chance to kill her. He then
suggested sarcastically that she should go ahead. The appellant brought the knife down slowly
towards the deceased as he lay on the sofa. She thought he would ward it off and did not mean to
kill or harm him, her object being only to frighten him. The knife entered his stomach, killing
him. At the scene of the crime the appellant told a police officer that she wanted to kill her
husband and that she had sharpened the knife to kill him because of what he had done to her. In a
later statement to the police she said that his death was accidental and that she did not mean to
kill him. She was charged with murder. At her trial her counsel put forward the defence of
diminished responsibility but since the provocative remarks the deceased had made leading up to
the killing were adduced in evidence the trial judge was required to leave the defence of
manslaughter on the grounds of provocation to the jury as an alternative verdict. The judge
directed the jury on provocation to the effect that in relation to a charge of murder provocation
consisted of some act or series of acts done or words spoken, or a continuation of words and acts,
which caused in the particular defendant a sudden and temporary loss of self-control and which
would have caused a reasonable, sober person to lose his self-control and to behave as the
defendant had behaved. The appellant was convicted. She appealed on the ground, inter alia, that
the judge had wrongly directed the jury on provocation.

Held - in order to reduce a charge of murder to manslaughter on the ground of provocation it had
to be shown that the provocative conduct relied on had suddenly and temporarily deprived the
accused of the power of self-control. Provocative acts in the course of domestic violence over a
period of time which did not cause sudden and temporary loss of self-control did not amount to
provocation in law, but might be considered by a jury as part of the context or background
against which the accused's reaction to provocative conduct had to be judged. On the appellant's
own statements and evidence, her action in stabbing the deceased had not been the result of
sudden loss of self-control induced by the deceased's provocative statements. Accordingly, the
judge had not misdirected the jury. Furthermore, the decision of the appellant's legal advisers to
concentrate her defence on diminished responsibility did not raise any lurking doubt that she had
suffered an injustice or that her conviction was unsafe or unsatisfactory. Accordingly, the appeal
would be dismissed (see p 313 j to p 314 c and p 316 d to g, post).

R v Duffy [1949] 1 All ER 932 applied.

Notes

For provocation as a defence to a charge of murder, see II Halsbury's Laws (4th edn reissue)
paras 438-439, and for cases on the subject, see 15 Digest (Reissue) 1122-1128, 9426-9489.

Cases referred to in judgment

DPP v Champlin [1978]2 All ER 168, [1978] AC 705, [1978] 2 WLR 679, HL.
R v Brown [ 1972] 2 All ER 1328, [1972] 2QB229, [1972] 3 WLR II, CA.
R v Davies [1975] 1 All ER 890, [1975] QB 69 1, [1975] 2'WLR 586, CA.
R v Duffy [1949] I All ER 932, CCA. -
R v Ensor [1989] 2 All ER 586, [1989] 1 WLR 497, CA.
R v Hayward (1833) 6 C &P 15 7, 172 ER 1 188.
R v Hopper [1915] 2 KB 431, [1914-15] All ER Rep 9 14, CCA.

Cases also cited

Holmes v DPP [1946] 2 All ER 124,[1946] AC 588, HL.

Kwaku Mensah v R [1946] AC 8 3, PC.
Mancini v DPP [1941]3 All ER 272, [1942] AC I, HL.
R v Byrne [1960]3 All ER I [ 1960] 2 ARAB 396, CCA.
R v Fantle [1959] Crim AMR 5 84, CCC.
R v Trans (1981) 74 Cr Asp R 154, CA.
R v Raven [1982] Crim AMR 5 1, CCC.
R v Terms [1961] 2 All ER 569, [ 1961] 2 ARAB 314, CCA.

Appeal against sentence

Sara Elizabeth Thornton appealed by leave of the single judge against her conviction for murder
in the Crown Court at Birmingham on 23 February 1990 before Judge J and a jury for which she
was sentenced to imprisonment for life. The facts are set out in the judgment of the court.

Lord Gifford QC and Edward Fitzgerald (neither of whom appeared below) (instructed Chawla
Sanghvi Patel, Wembley) for the appellant. E R Escott Cox QC (instructed by the Crown
Prosecution Service, Birmingham) for the Crown.

Cur adv vult

29 July 199 1. The following judgment of the court was delivered.

BELDAM LJ. The appellant, Sara Elizabeth Thornton, who is now 35 years of age, was
convicted of murder in the Crown Court at Birmingham on 23 February 1990. She was sentenced
by Judge J to life imprisonment and now appeals against her conviction by leave of the single
judge.

At the trial the appellant was represented by leading and junior counsel. The indictment faced by
the appellant charged her with the murder of her husband, Malcolm Thornton, on 14 June 1989.
It was not in dispute at the trial that the deceased had died from a stab wound to the stomach with
a long kitchen knife, or that it was the appellant who had administered the blow. The trial was
concerned with the appellant's responsibility at the time of inflicting the fatal wound. The
appellant had contended that she did not intend to harm the deceased, and that the injury and his
death were accidental, but the evidence did not reasonably permit of that interpretation of the
events. Although there was some evidence from which the jury might have concluded that the
appellant acted under provocation, so that the judge left this possibility to them to consider, the
appellant's defence, supported by two distinguished medical witnesses, was that diminished
responsibility. Three have been raised in this appeal by Lord Glifford QC, who did not represent
the appellant at the trial.
First, it is contended that the judge misdirected the jury on the issue of provocation, secondly,
that he misdirected them on diminished responsibility and, thirdly, that the conviction of the
appellant is unsafe or unsatisfactory because counsel at the trial failed to advance the defence of
provocation as an alternative to, or in addition to, the defence of diminished responsibility. It is
contended that the decision of counsel at trial to confine the defence to diminished responsibility
was an error of judgment, that the failure to advance that defence has resulted in an injustice to
the appellant and that this court should therefore interfere and set aside her conviction. To decide
these questions, we must first say something of the facts which led to the deceased's death.

The appellant was born in Nuneaton, Warwickshire. Her parents were in comfortable
circumstances and the appellant went to a public school in Somerset. Whilst at school she began
to suffer from a personality disorder. At 16 she was asked to leave. After several relationships
with young men which did not work out she met her first husband. She was then 22. She gave
birth to a daughter the following year and initially the marriage was happy. However, when her
husband's business took him abroad and she later joined him, she found that he had begun to
drink heavily. He was violent towards her, so she left him and returned to England with her
daughter and went to live in Coventry with her grandparents. On several occasions she attempted
suicide, but it is questionable whether she actually intended to take her own life. After a
particularly stressful period of her life in 1981 she was admitted to Walsgrave Hospital,
Coventry as a patient under the Mental Health Act 1959 but was discharged after a short time.

She met the deceased, Malcolm Thornton, in a public house in May 1987. He was an ex-
policeman, who was working as a security officer at the time. From the start she realised he was
a heavy drinker and was jealous and possessive. That autumn she and her daughter moved in to
live with the deceased in his home in Atherstone. By December the following year he was
obviously suffering from alcoholism, and he was admitted to a clinic for treatment. The
treatment appeared to be successful and in August 1988 the appellant and the deceased were
married. At first the marriage was successful but by the following Christmas the deceased had
resumed his drinking and on occasions was violent in the home, breaking furniture and
assaulting the appellant. Early in 1989 he lost his driving licence and his job and in May, after an
argument, he committed a serious assault on the appellant. She complained to the police, who
eventually charged him.

After this incident she went to stay with her father and stepmother in Devon for several days.
While she was there the deceased's son by his former marriage, Martin, returned to live with his
father at Atherstone. On 26 May the appellant returned home and, according to her, for the next
fortnight the deceased made a real effort to give up drink. On 9 June he asked the appellant if she
would withdraw the charges which he faced and which were due to be heard on 21 June.

On the weekend of 10-11 June the appellant attended a sales conference at the De Vere Hotel,
Coventry, organised by her employers. A fellow employee attending this conference, Mrs
Thomas, said that the appellant seemed to be enjoying herself but that there was an incident
following a telephone call to the deceased. After the telephone call Mrs Thomas told the
appellant that she had to sort the matter out and, according to her, the appellant replied: 'I am
going to kill him.'
But for subsequent events Mrs Thomas might well have dismissed this as no more than an
expression of exasperation. Mrs Thomas accompanied the appellant home the following
morning. The deceased had clearly been drinking and had a Hangover. The appellant became
very frustrated and showed it. After, Mrs Thomas, had gone at about lunch-time there was a row,
which was witnessed by the deceased's son, Martin. Martin was a witness who was realistic
about his father's shortcomings and accepted many of the criticisms made of him. According to
him, in the course of the row the deceased picked up a guitar and threatened the appellant with it.
The appellant for her part picked up a knife, held it in front of her pointing towards the deceased
and said: 'You touch my daughter, you bastard, and I'll kill you.'

Martin intervened and made her put the knife down. Later that day, when the row had died down,
the appellant gave the deceased two Mogadon tablets and later introduced four more into his
food. She telephoned the doctor saving that the deceased had taken an overdose of Mogadon and
that he was suicidal. She later explained her actions by saving that she wanted to get the
deceased committed to hospital. An ambulance and the police arrived, but the deceased revived
and refused to accompany them to hospital. When they had gone he was incensed by what the
appellant had done and he threw a chair through the glass window of the kitchen door, breaking
the glass.

On the following day, Monday, the appellant telephoned Mrs Thomas telling her she had found
drink concealed in the house. She talked about the difficulties of divorce as they had only been
married a short time and she spoke of the difficulty of financial settlements. The deceased went
out drinking. He came home and was sick, caused a burn hole in the arm of a chair and spent the
night sleeping on the couch downstairs.

On Tuesday there was a further row in the home. The deceased was drunk but not helpless, and
when he arrived home an argument developed with the appellant. During the row the deceased
abused her and told her to get out of the house and that she must leave. The appellant arranged
for her daughter to leave and shortly afterwards she spoke on the telephone to Mrs Thomas,
saying: 'I am going to have to do what I said I would do', which Mrs Thomas understood to be a
reference to the threat to kill the deceased made the previous weekend.

That evening the appellant went out for a drink to the local public house with the deceased's son,
Martin. Before leaving she wrote on her bedroom mirror in lipstick: 'Bastard Thornton. I hate
you.' When they left the house the deceased was sleeping on the couch. Martin returned home
first. The deceased was still sound asleep on the couch. The appellant returned later in a taxi. The
taxi driver described the appellant as 'quarrelsome and arrogant'.

By the time she arrived home Martin was in bed but was not asleep, though not fully conscious.
The appellant went up to her bedroom and changed into her nightclothes. She then went down,
according to her, to try to persuade the deceased to come to bed. He refused, called her 'a whore'
and said she had been selling her body: she was not going to get any money from him and he
would kill her if she had been out with other men. She said that she had only been trying to raise
money for their business. She was hurt and wounded by his remarks but recalled advice she had
been given by Alcoholics Anonymous that she should go and try to calm down. She went into
the kitchen and looked in the drawer for a truncheon, which the deceased kept there, so that she
had some protection if he attacked her. Not finding it, she saw a knife. It was a long carving
knife and, according to a subsequent statement she made to the police, she sharpened it. She then
returned to the sitting room, where the deceased was on the sofa. She again asked him to come
up to bed but he refused and again made wounding remarks to her saying that he would kill her
when she was asleep. She then sat on the edge of the couch by his chest and said: 'Come to bed.'

He made no move, so she stood up in front of him holding the knife in her hand over his
stomach. She then brought it down towards him thinking that he would ward it off. He did not do
so and the knife entered his stomach. She did mean to kill him or harm him in any way Her
object in having the knife she was merely to frighten him. She only brought the knife down
slowly, not that quickly. Martin upstairs had heard no sound of raised voices but he heard a
scream from his father. He went downstairs and was met by the appellant, who said: 'Martin I've
killed your father.'

She then telephoned for the ambulance and for the police. The police and ambulance arrived.
The appellant told the police officer that she had stabbed the in deceased with a carving knife. He
asked her: 'Have you tried to kill him?' She replied 'I wanted to kill him.'

In the course of efforts to save the life of the deceased she is said to have remarked: 'I don't know
why you are bothering. Let him die.' At that the police officer said: 'Do you understand what you
are saying?' And she said: 'Yes, I know exactly what I am saying. I sharpened up the knife so I
could kill him. Do you be know what he has done to me in the past?' She was asked: 'Did he beat
you up tonight?' She replied: 'No.' 'Did he threaten to? She answered: 'He would have.'

At that moment Martin passed by. She took hold of his arm and said: 'I want the to say here and
now this was all my fault and nothing to do with anyone else.'

She then demonstrated to the police officers and to the ambulance men how she had brought the
knife down towards the deceased's stomach.

She was taken to the police station and interviewed after she had spoken to her was solicitor on
the telephone. She was overheard to tell the solicitor that she had stabbed the deceased after he
had said: 'I'll fucking kill you.' She added: 'So I went to get a knife and I stabbed him.' in the
course of the interview she said: 'Oh God, I loved him so much.'

Describing the events of the evening, she repeated the demonstration of how she had held the
knife and that she had expected the deceased to parry any blow. She agreed he was still lying on
the settee at the time he was killed. She said she was angry and hurt but she did not want to kill
him, did not mean to kill.

In a later interview, the following evening, in the presence of her solicitor she was asked further
questions. She repeated her account. She said she had gone out of the room into the kitchen to
calm down the situation and that she had managed to calm herself down. Asked what she had
intended to do with the knife when she picked it up in the kitchen she said: 'Just frighten him.
Just say to him you can't threaten me, you can't hurt me.'
She wanted him to see that she would not be threatened any more. Later she explained that she
had said words to the effect: 'If you don't come to bed, I'll kill you. Come on, this is enough. I'll
kill you before you ever get a chance to kill me.' He said: 'Oh yeah, go on then. Oh yeah, go on',
saying it very sarcastically.

It was then that she had moved the knife in a downward movement with the blade pointing down
expecting him either to push her away or grab hold of it with his hands. She repeated on several
occasions that she had no intention whatever of stabbing him or of hurting him at all. She had not
brought the knife down fast. She had done it slowly. She agreed she had plenty of time to stop.
She said yet again that she had stabbed him but had nor meant to.

In due course a report upon her mental condition was prepared for the Crown as by Dr Brockman
and two reports were prepared for the defence, the first by Dr, Bullard, a consultant psychiatrist,
and the second Professor Sydney Brandon or the department of psychiatry, University of
Leicester. All the psychiatrists agreed that the appellant suffered from a personality disorder,
which amounted to abnormality of the mind and that this was due either to retarded development
of her personality or to inherent causes. Dr Bullard and Professor Brandon believed that at the
time she killed the deceased the abnormality of mind was so pronounced that it substantially
impaired her mental responsibility for the acts she had done in killing him. Dr Brockman, on the
other hand, whilst agreeing at that the appellant suffered from a personality disorder, thought that
the type of a disorder from which she suffered was one which generally improved as the patient
matured, and on the evidence it had done so in the appellant's case. Consequently she did not
think that at the time of the killing the abnormality of mind was such as substantially to impair
her mental responsibility for her action in killing the deceased.

At the trial the appellant was represented by experienced leading and junior counsel instructed by
her solicitors. We have been told, as we would have expected, that before the trial three possible
arguments for the defence of the appellant, were canvassed: lack of intent, provocation and
diminished responsibility. Leading counsel had expressed the view that the most effective
defence would be that of diminished responsibility supported by the expert psychiatric opinions
obtained on her behalf and that such provocative remarks as the deceased had made leading up to
the killing would inevitably be adduced in evidence, so that the judge would be bound to leave
the defence of manslaughter as the result of provocation to the jury as an alternative verdict in
any event. According to the information we have been given, the appellant attended a pre-trial
conference on 27 January with leading and junior counsel which lasted two hours. She was seen
on many occasions by junior counsel both before and during the trial.

Against that background the appellant argues that the Judge misdirected the jury on the question
of provocation. His direction was as follows:

'I come now to the question of loss of control and provocation. It is my duty to mention this to
you, members of the jury, [because] you will notice a that [counsel] did not address you on the
basis of provocation and it will I think be obvious to you why in a moment when you have heard
what I have in to say to you about it. Members of the jury, the word "provocation" in a ordinary
language is used pretty freely and not always very appropriately.'
The judge went on to give an example of the inappropriate use of the word 'provocative'. He
continued: to 'You are not being asked to consider "Did he lead her a miserable life?", whether
you think he did or not on the evidence, nor are you asking yourself in "Does she deserve
sympathy?", because that is not the issue in the case. For the purposes of the charge of murder,
provocation consists of some act or series of acts done or words spoken or a continuation of
words and acts which causes in the particular defendant a sudden and temporary loss of self-
control and which would have caused a reasonable, sober person to lose her self-control and to
behave as the defendant behaved. So there are two questions. The first question is whether the
provocative conduct, such as it was, if there was any, caused the defendant to lose her self-
control. There has to be a sudden loss of self-control. The defendant herself asserts that there was
no sudden loss of self-control. Members of the jury, that no doubt is why [counsel] did not
address you and invite you to consider provocation. But, even if that were the case, there would
still be the second part. The second question is whether the provocative act would have caused a
reasonable, sober person to lose her self-control and behave as the defendant behaved and on
this, of course, you would take into account the whole picture, the whole story, everything that
was said, possibly anything that was done, if there was anything done, on this night, according to
the effect it would have on a reasonable, sober woman in the position in which the defendant
believed at herself to be and, of course, a reasonable sober woman, like a reasonable, sober man,
is expected to have ordinary powers of self-control, normal powers expected of a person of the
sex and age of the particular defendant and sharing her characteristics as you have been able to
discover them. Members of the jury, so far as this aspect is concerned, even if Mrs Thornton had
lost her self-control, you would still have to ask whether a reasonable woman in of her position
would have done what she did and, if you think (and this is for to say) that she went out and
found a knife and went back into the room self-" and as a result of something said to her stabbed
her husband as he lay defenceless on that settee deep into his stomach, it may be very difficult to
come to the conclusion that that was, and I use the shorthand, a reasonable reaction. There are...
many unhappy, indeed miserable, husbands and take wives. It is a fact of life it has to be faced,
members of the jury. But on the whole it is hardly reasonable, you may think, to stab them fatally
when there other alternatives available, like walking out or going upstairs.'

The judge then reminded the jury that the burden was on the prosecution to prove that the
appellant was not provoked or acting under provocation.

We summarise we hope fairly, the criticisms made of this direction: that it was wrong of the
Judge to draw attention to the fact that the appellant's counsel had not adverted to the question of
provocation; that the Judge did less than justice to the appellant's evidence and, even if he was
justified in saying that she and had given evidence that there was no sudden loss of control, that
did not determine the question. It was for the jury to say, on the whole of the evidence, a whether
they were satisfied that the Crown had shown that she was not provoked by the deceased's words
and conduct. It was argued that the jury could have interpreted the judge's words as meaning that
they should not take into account in any circumstances but those which immediately led up to the
stabbing and that the judge was wrong to confine provocation to a sudden loss of control.

It is convenient to deal with the last criticism at the outset. Lord Gifford suggested that the legal
concept of provocation did not require loss of self-control to be sudden, and that such a
requirement had been incorporated into the law by a too literal adoption of the words used by
Devlin J in his summing up to the jury in R v Duffy [1949] 1 All ER 932, which was
emphatically approved by Lord Goddard CJ on appeal. The passage in the summing up in that
case from which or the words are taken reads (at 932-933):

'Indeed, circumstances which induce a desire for revenge are inconsistent with provocation, since
the conscious formulation of a desire for revenge means that a person has had time to think, to
reflect, and that would negative is a sudden temporary loss of self-control which is of the essence
of provocation... Provocation being, therefore, as I have defined it, there are two things, in
considering it, to which the law attaches great importance. The first of them is whether there was
what is sometimes called time for cooling, that is, for passion to cool and for reason to regain
dominion over the mind. That is why most acts of provocation are cases of sudden quarrels,
sudden blows inflicted with an implement already in the hand, perhaps being used, or being
picked up, where there has been no time for reflection.'

The words 'sudden and temporary loss of self-control' have ever since been as regarded as
appropriate to convey to a jury the legal concept of provocation first a expressed by Tindal CJ in
R v Hayward ( 183 31 6 C & P 157 at 159, 1 -2 ER 188 at 189 in mitigation of the rigour of the
law for acts committed-

'while smarting under a provocation so recent and so strong, that, the prisoner might not be
considered at the moment the master of his own understanding...'

Lord Gifford argued that Devlin J's words are no longer appropriate in the case of reaction by a
person subjected to a long course of provocative conduct, including domestic violence, which
may sap the resilience and resolve to retain self-control when the final confrontation erupts. In
such circumstances it is misleading, he says, to talk of a sudden loss of control. He points to the
words of s 3 of the Homicide Act 1957, which require the jury, in determining whether the
provocation was sufficient to make a reasonable man do as the accused did, to take into account
everything both done and said according to the effect it would have on a reasonable man. Lord
Gifford also referred us to passages in the judgment in DPP v Camplin [1978] 2 All ER 168 esp
at 177, [ 1978] AC 705 esp at 72 1, where Lord Morris said:

'It seems to me that as a result of the changes effected by s.3 of the 1957 Act a jury is fully
entitled to consider whether an accused person, placed as he was, only acted as even a reasonable
man might have acted if he had been in the accused's situation.'

The changes in the law of provocation made by s 3 of the Homicide Act 1957 and the reasons for
them are well known. It has never, so far as we are aware, been suggested that the distinction
drawn by Devlin J between a person who has time to think and reflect and regain self-control and
a sudden temporary loss of self-control is no longer of significance. On the contrary, the
distinction drawn a by Devlin J is just as, if not more, important in the kind of case to which
Lord Gifford referred. It is within the experience of each member of the court that in cases of
domestic violence which culminate in the death of a partner there is frequently evidence given of
provocative acts committed by the deceased in the past, for it is in that context that the jury have
to consider the accused's reaction. In every such case the question for the jury is whether at the
moment the fatal blow was struck the accused had been deprived for that moment of the self-
control which previously he or she had been able to exercise. The epithet 'sudden and temporary'
is one a jury are well able to understand and to recognise as expressing precisely the distinction
drawn by Devlin J. We reject the suggestion that in using the phrase 'sudden and temporary loss
of control' there was any misdirection of the jury.

The other criticisms directed to this passage of the summing up are, we consider, without
foundation. The jury were told in terms to take account of 'the whole picture, the whole story'
when considering if the provocative act would have caused a reasonable and sober person to lose
her self-control and behave as the defendant behaved. It is not reasonable to suggest that,
because the Judge continued: 'everything that was said, possibly anything that was done, if there
was anything done, on this night...', the jury would have regarded those words as confining the
whole picture, the whole story, to the night of the deceased's death.

Each case has to be considered against the background of its particular facts. So we a direction to
the jury that to find provocation they had to find it in something done on the morning of the
killing was approved in R v. Brown [ 1972] 2AllER 1328, [1972] 2 QB229 and a direction that
they could review the whole of the deceased's conduct throughout the turbulent years preceding
the death was characterised as 'too generous' in R v. Davies [1975] 1 All ER 890, [1975] QB 691.
Nor do we think the judge was in error in referring to the fact that counsel for the appellant had
not addressed them on provocation. The facts of this case were quite different to the facts of R v.
Hopper [1915] 2KB 431, [1914-15] All ER Rep 914, to which we ,were referred. In that case
counsel for the defence had made it plain that he intended as an alternative to the defence of
accident to invite the jury to acquit of murder but convict of manslaughter on the ground of
provocation. The judge directed the jury to acquit the appellant or find him guilty of murder,
taking the view that it was impossible to find a verdict of manslaughter. This court thought that
the verdict of manslaughter was open to the jury and that it should have been left to them as a
possible verdict. By his remarks to the jury in the present case, the judge was doing no more than
telling the jury that counsel may not have felt able to advance the defence of provocation because
of the clear evidence which the appellant herself had given, but notwithstanding that he or
directed them that it was for them to say whether or not on the evidence then Crown had proved
that she was not provoked.

The second argument for the appellant criticised the judge's direction on the question of
diminished responsibility. After explaining that defence he said:

'Diminished responsibility has three limbs to it. First, abnormality of the mind. That takes into
account questions like capacity to understand, the ability to make sensible, rational judgments,
the ability through your mind like and your will to exercise control of yourself. So first element-
abnormality of mind. Second, it arises out of a condition of arrested or retarded development of
mind or from any inherent causes. That is all I need say to you about that ... But then the third
element may be the one on which your attention will have to be most seriously focused. it
substantially impairs the defendant's mental responsibility for her acts in doing the killing.
Substantially-that means something more than mere trivial impairment, but it does not mean that
you are looking for total or absolute impairment. If, approaching the matter in a commonsense
way ... you conclude that Mrs Thornton did suffer from an abnormality of mind and that it made
an appreciable difference to her mental responsibility for her actions when she killed her
husband, that would be sufficient for the purposes of this case.'

Later he referred to the issue between the psychiatrists as:

'... a simple one and it is whether at the time of the killing of Mr Thornton, Mrs Thornton's
mental responsibility for her actions was substantially impaired. Dr Bullard and the professor
said it was. Dr Brockman says No.'

That indeed was the issue between the psychiatrists, because they all agreed that the appellant
suffered from a personality disorder which amounted to abnormality of the mind. We find
difficulty in understanding the criticism of the judge's direction. After reminding the jury of the
psychiatrists' evidence, he summarised the arguments for the prosecution and the defence
respectively. For the prosecution it was that, whilst there may have been such abnormality as
would have impaired her mental responsibility in 1979 or 1981, the condition had clearly
improved over the intervening period and that at the time of the killing it was not shown to be
such as would do so. The defence argument he summarised by reminding the jury of the opinion
of Dr Bullard saying that the appellant was at the mercy of her impulses and the effect of the
domestic stress on her personality disorder had the effect at the critical moment of substantially
impairing her mental responsibility as the result of a stressful situation arising out of the
matrimonial problems and that her impairment was substantial, that the jury could not ignore the
stress that was building up gradually so that what happened on 13 June at the moment of the
killing was the result of a cumulative effect of stress on this disordered personality.

Having read the transcript of the evidence given by the psychiatrists, we are quite satisfied that
this was a fair and succinct summary of the competing arguments put forward on each side. We
see no basis for saying that there was a misdirection.

Finally, we come to the argument that the court should hold that the conviction of the appellant
was unsafe and unsatisfactory because defence counsel failed to put forward and actively pursue
the defence of provocation as an alternative to, or in conjunction with, the defence of diminished
responsibility.

There is no doubt that the two defences are not incompatible where the evidence which is given
enables them to be combined.

At the outset we have to remark that it was the clear evidence of the psychiatrists called by the
defence that it was the prolonged build-up of stress on the disordered personality of the appellant
which substantially impaired her mental responsibility. We cannot help feeling that, if after the
very detailed study which they had made of the case they had held the opinion that her mental
disorder made it more likely that in the face of verbal insult she would have given way to
impulsive tendencies or aggression, they would have said so, and would have stressed this
characteristic as significant in her loss of self-control; but, as with her legal advisers, her medical
consultants were also constrained by the account which she herself gave of the events leading up
to the fatal stabbing. Notwithstanding this, the jury were directed to consider the defence of
provocation, and having regard a to the passages from the summing up both on provocation and
on diminished responsibility, to which we have referred, we would find it surprising if the jury
approached the issues keeping them entirely separate. We think that, as in such cases, the
concepts of loss of self-control, abnormality of mind and substantial impairment of responsibility
would have been regarded by the jury as interrelated, blending the one into the other but
distinguished by the essential feature that provocation produces a sudden or impulsive reaction
leading to loss of control whereas the impairment of mental responsibility is due to the effect of
the long period of stress upon a disordered personality.

It was argued that there was an error of judgment on the part of the appellant's counsel in failing
to advance the defence of provocation, which was open to her, positively before the jury, that in
those circumstances her defence was compromised and that her conviction was therefore unsafe
and unsatisfactory, that in those circumstances this court had power to quash the conviction and
either to substitute a verdict of manslaughter or order a retrial. Mr Escort Cox in QC for the
Crown drew our attention to the decision of this court in R v Censor [1989] 2All ER 586, [1989]
1 WLR 497.

On a similar submission to that advanced by Lord Gifford, the court held in that case that, if
defending counsel in the course of his conduct of a case made a decision or took a course which
later appeared to have been mistaken or unwise, that normally would not be regarded as a proper
ground for an appeal but that if the court had any lurking doubt that the appellant might have
suffered some injustice as a result of flagrantly incompetent advocacy the court would quash the
conviction. We apply that principle in this case. We have read the transcripts of the appellant's
evidence. There is no suggestion in that evidence, as there was not in the statements she made
immediately after the event, that she had reacted suddenly and on the spur of the moment,
deprived of her self-control, to the statements made by the deceased. On the contrary, she always
insisted was that she had gone to the kitchen to cool down and had cooled down. She added to
the difficulties of those advising her by insisting, as she had done well over a an dozen times in
interview with the police, that she had no intention of stabbing him or doing him any harm. The
decision to concentrate on the defence of up diminished responsibility, supported as it was by
distinguished psychiatrists, was not only careful and considered but was one which in our view
most advocates would have adopted. The efforts of Lord Gifford failed to convince us otherwise
coils and consequently we reject this ground of appeal too.

In the result therefore the appeal against conviction will be dismissed.

Appeal dismissed. The court refused to certify under s 33(2)of the Criminal Appeal Act 1968,
that a point of law of general public importance was involved in the decision.

Ratio: Battered woman syndrome may be part of

provocation if it causes a loss of control. The history of the
relationship between the appellant and the deceased could
properly be taken into account in deciding whether the final
provocation was enough to make the statutory ordinary
person act as he did.