Source: All England Reporter
Publisher Citation: [2001] All ER (D) 69 (Aug)
Court: Privy Council
Judge:

Lord Bingham of Cornhill, Lord Mackay of Clashfern, Lord Nicholls of Birkenhead, Lord Hoffman and Lord Clyde
Representation Peter Carter QC and Annabel Pilling (instructed by Oury Clark) for the appellant.
  James Dingemans (instructed by Charles Russell) for the respondent.
Judgment Dates: 18 July 2001

Catchwords

Privy council - Criminal appeal - Special leave to appeal - Appellant giving evidence of provocation but not using it as defence - Court of Appeal not leaving issue of provocation to jury to consider - Court of Appeal applying proviso and dismissing appeal on grounds that no miscarriage of justice had occurred - Whether proviso properly applied in circumstances of case.

The Case

Section 9(1) of the Offences Against the Person Act of Antigua, (as amended), provided that, where on a charge of murder there was evidence that the person charged was provoked to lose self-control, the question whether the provocation was enough to make a reasonable man do as he had done should be left to be determined by the jury. In the instant case, even though the appellant's evidence at trial had made references to provocation, the Eastern Caribbean Court of Appeal had applied the proviso to s 39(1) of the West Indies Associated States Supreme Court Act 1969, and dismissed the appeal without giving the jury a chance to consider that issue. In those circumstances, the proviso had been wrongly applied and the case would be remitted to the Court of Appeal in order that that court might impose an appropriate sentence.

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