There could only be an issue of provocation to be left to the jury, pursuant to section 3 of the Homicide Act 1957, where the judge considered that there was some evidence, whatever its source, and whether or not it had been relied on by the defence, of a specific act or words of provocation resulting in a loss of self-control. A speculative possibility that there had been an act of provocation was not enough.
The House of Lords dismissed an appeal by Brian Gordon Acott against the decision of the Court of Appeal, Criminal Division ( 4 All ER 443) dismissing his appeal against conviction at the Central Criminal Court on 19 June 1995 for the murder of his mother.
Section 3 of the 1957 Act provided:
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.
At his trial, the defendant's case was that he had not attacked his mother as alleged, and that her injuries had been caused by her falling and his unskilled efforts to resuscitate her. The jury rejected that explanation and convicted him.
On appeal, defence counsel argued that the Crown had made provocation an issue by repeatedly putting to the defendant in cross-examination that he had lost his self-control and attacked his mother and that he had been angered by his mother treating him like a little boy and berating him. The deceased's injuries were testimony to a frenzied attack which was prima facie indicative of a loss of self-control. Accordingly, it was said, the judge should have left the issue of provocation to the jury.
Michael Gale QC and Louis French (Sharpe Pritchard) for the defendant; Heather Hallett QC and Simon Russell Flint (Crown Prosecution Service) for the Crown.
Lord Steyn said that in the absence of any evidence, emerging from whatever source, suggestive of the reasonable possibility that the defendant might have lost his self-control due to the provoking conduct of the deceased, the question of provocation did not arise.
It remained the duty of the judge to decide whether there was evidence of provoking conduct which resulted in the defendant losing his self-control. If in the judge's opinion, even on a view most favourable to the defendant, there was insufficient material for a jury to find that it was a reasonable possibility that there was specific provoking conduct resulting in a loss of self-control, there was simply no issue of provocation to be considered by the jury: see Lee Chun-Chuen v The Queen  AC 220 at 229.
The defendant throughout denied the suggestions put to him in cross-examination and insisted that his relationship with his mother was good and that she had done nothing to anger him. The cross- examination produced no evidence of provoking conduct or of a loss of self-control.
Suggestions in cross- examination could not by themselves raise an issue of provocation where the evidence, on the most favourable view for the defendant, revealed no issue.
It was not enough to infer from the deceased's injuries that there was a reasonable possibility that the defendant had lost his self-control and attacked his mother in anger. The question was whether there was any evidence of specific provoking conduct. Mere speculation was not enough.
There had to be evidence tending to show the killing might have been an uncontrolled reaction to provoking conduct rather than an act of revenge.