APPEAL COURT, HIGH COURT OF JUSTICIARY
|
Lord Osborne Lord Abernethy Lord Johnston Lord Philip Lord Kingarth |
[2006]
HCJAC 61
Appeal No: XC924/04 OPINION OF THE COURTdelivered by LORD OSBORNE in NOTE OF APPEAL AGAINST CONVICTION by ANDREW URQUHART BLACK
GILLON Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______ |
Act: Jackson, Q.C., J. Barr; Milligan Telford
& Morrow,
Alt: J. Beckett, Q.C. A.D.; Crown Agent
The background circumstances
[1] On
"(5) on
The appellant also pled guilty to
three other charges on the indictment:
charge (1) a contravention of section 4(3)(b) of the Misuse of
Drugs Act 1971; charge (3), a contravention of section 5(2) of the
Misuse of Drugs Act 1971; and charge (4) a contravention of section 47(1)
of the Criminal Law (Consolidation) (Scotland) Act 1995. On the same date, the trial judge
sentenced the appellant to life imprisonment, that sentence to run from
[2] The
circumstances of the offence to which charge (5) related, as narrated in
the trial judge's report, were as follows.
The appellant, who was born on
[3] On
"(1) There has been a miscarriage of
justice in respect that-
(a) the learned trial judge misdirected the jury at
page 11, lines 21-24 of his charge in that he gave inadequate and
incomplete directions as to the mens rea
required for the crime of assault by failing to direct the jury that evil
intent is of the essence of the crime.
(b) The
learned trial judge misdirected the jury at page 12, lines 5-21, and
page 15, lines 12-17, of his charge in that he gave inadequate and
incomplete directions as to the mens rea
required for the crime of murder by failing to direct the jury that a wicked
intention to kill or wicked recklessness as to the consequences is of the
essence of the crime (Drury v H.M. Advocate 2001 S.C.C.R. 583).
(c) The
learned trial judge directed the jury at page 16, et seq., of his charge as to the law of provocation. Said directions do not explain that the
essence of the plea is the absence of wicked intent to kill or wicked
recklessness as to the consequences (Drury
v H.M. Advocate, supra).
(d) The
effect of the directions at (a), (b) and (c), supra, is that the jury did not specifically require to determine
when considering the issue of provocation, whether if they accepted that the
[appellant] acted under provocation but nevertheless concluded, having regard
to the manner, number and nature of the injuries inflicted upon the deceased,
that intention to kill or recklessness as to the consequences was proved, they
were satisfied that the appellant acted wickedly when he killed the deceased. The jury should have been specifically
directed to make such a determination when considering the issue of provocation
and the failure to do so amounts to a miscarriage of justice and the conviction
should be quashed.
(e) Separatim, the learned trial judge
misdirected the jury at pages 17, et
seq., of his charge, that for provocation to reduce what would otherwise be
a conviction for murder to culpable homicide one of the three requirements
they must be satisfied about was that the appellant's retaliation must be (sic) a reasonable relationship, and not
be grossly disproportionate, to what provoked the retaliation. The learned trial judge should have directed
the jury that evidence relating to provocation in general, and proportionality
between provocation and retaliation in particular, were simply factors which
the jury should take into account in performing their general task of
determining the appellant's state of mind (i.e. in determining whether he had a
wicked intent to kill or was wickedly reckless as to consequences) at the time
when he killed the deceased. The failure
to so direct the jury amounts to a miscarriage of justice and the conviction
should be quashed.
(f) Separatim, the learned trial judge at
pages 22, 23 ad 24 (in particular at lines 7-15 of page 24) of
his charge gave undue prominence, emphasis and weight to the Crown's submission
that the appellant's retaliation was grossly disproportionate to the deceased's
provocation such that the appellant's plea of provocation was excluded and that
the only proper verdict was one of murder.
The giving of such prominence to the Crown's submissions amounts to a
miscarriage of justice and the conviction should be quashed."
Having regard to the date of the
lodging of the note of appeal against conviction,
[4] On
29 September 2005, the Court, on the motion of counsel for the appellant,
remitted the appeal to a bench of five judges on the basis, described in
the interlocutor of that date, of "the issues, inter alia, of proportionality and provocation, in the light of the
Opinions of the Court in Drury v H.M. Advocate ...". In an opinion delivered in association with
the interlocutor on
"It is not in doubt that these
directions, and in particular in regard to the third requirement, were in
accordance with the law relating to provocation as it was then understood. In Robertson
v H.M. Advocate 1994 S.C.C.R. 589
Lord Justice Clerk Ross stated at page 593F:
'It is by now well established that
loss of control is not the only element in provocation. Although provocation does involve the loss of
control, there must be a reasonably proportionate relationship between the
violent conduct offered by the victim and the reaction of the accused.'
In
this appeal it is maintained that the trial judge misdirected the jury in
respect that he should have directed them that evidence relating to
provocation, and proportionality between provocation and retaliation in
particular, were simply factors which the jury should take into account in
performing their general task of determining whether the appellant had a wicked
intent to kill or was wickedly reckless as to the consequences at the time when
he killed the victim.
On
behalf of the appellant Mr Jackson referred at the outset to the analysis
of the relationship of provocation to intentional killing in the opinion of
Lord Justice General Rodger in Drury
v H.M. Advocate 2001 S.C.C.R.
583. At paragraphs 17 and 18 the
Lord Justice General stated that evidence relating to provocation was simply
one of the factors which the jury should take into account in performing their
general task of determining the accused's state of mind at the time when he
killed the victim, and deciding whether his action, though culpable, was not
wicked or, at least, that they had a reasonable doubt as to whether it was
wicked, and therefore they should convict him of culpable homicide. To refer to provocation as reducing murder to
culpable homicide was essentially misleading, in respect that it suggested that
the jury would first conclude that, in the absence of provocation the accused
would have been guilty of murder, and only at that stage would they consider
provocation.
Drury was an example of the type of case
in which the accused claimed that he had reacted to the discovery of sexual
infidelity. In paragraph 25, the
Lord Justice General pointed out that Scots law admitted that type of case as
an exception to the general rule that provocation applied only where the
accused had been substantially assaulted.
In paragraph 28 he said that it was wrong for the trial judge in
such a case to direct the jury that they had to consider whether the degree of
violence used by the accused was or was not grossly disproportionate to the
provocation, when they were actually incommensurable. He expressed the correct approach as follows
in paragraph 32:
'Where, therefore, the accused has
reacted to provocation in a way in which no ordinary man or woman would have
been liable to react, a jury can rightly conclude that he acted with that
wickedness that justifies a conviction for murder.'
At the same time he pointed out in
paragraph 34 that the nature and degree of the violence perpetrated by the
accused would be relevant to the jury's consideration of that issue.
Mr Jackson
pointed out that in Drury the court
had been invited to consider whether, in regard to provocation generally, there
was no rule of law that there required to be a reasonably proportionate
relationship between the provocative conduct and the reaction of the
accused. However, the court had not
dealt with that question, since they had distinguished Drury from the type of case in which the provocation took the form
of an assault. In paragraph 35, the
Lord Justice General said that he expressed no view on the general question,
except to notice that, even in England and New Zealand, where there was no requirement
that, as a matter of law the response should be proportionate to the
provocation, the nature and degree of the accused's response were nonetheless
aspects of the evidence to which the jury could have regard when deciding
whether the accused reacted in the way in which an ordinary man would have been
liable to react. Only Lord Cameron of
Lochbroom suggested positively that there was a difference in the rules of the
criminal law, according to whether the provocation was said to arise from the
victim's use of force or from discovery of sexual infidelity. The other members of the court reserved their
opinion on that matter.
Mr Jackson
accepted that if the law relating to provocation which took the form of an
assault was as stated in Robertson,
the appeal could not succeed. However,
he maintained that there was no logical reason why the approach taken by the
Lord Justice General in Drury in
regard to the relationship between provocation and murder should not be
applicable in cases in which the provocation took the form of assault. This involved a single test in determining
whether it was proved that the accused had acted with the mens rea for murder. Accordingly, it would be open to the jury to
conclude that an accused had acted with the wickedness which justified a
conviction for murder where he had reacted to such provocation in a way in
which no ordinary man or woman would have been liable to react. He sought the opportunity to make these
submissions before a court of five judges which would be able to review
the soundness of decisions such as Robertson.
We
are satisfied that, in the light of the analysis of the relationship between
provocation and murder in the opinion of the Lord Justice General in Drury, there is an issue as to whether
it is a rule of law that for provocation by assault to lead to a conviction of
culpable homicide there required to be a reasonably proportionate relationship
between the violence offered by the victim and the reaction of the accused, and
that this question should be resolved by a court of five judges."
[5] On
(1)
In regard to provocation by violence generally, is there a rule of law
requiring a reasonably proportionate relationship between the provocative
conduct and the reaction of the accused?
(2)
If not, by what standard should the conduct of the accused be
considered?
Submission on behalf of the appellant
[6] When this
appeal came before us, senior counsel for the appellant drew attention to the
fact that the trial judge had directed the jury in ordinary terms regarding
provocation, in conformity with the law as it was then understood to be. He referred to the requirement that there had
to be a reasonably proportionate relationship between the violent conduct
offered by the victim and the reaction of the accused. The issue in the present appeal was whether
such a direction was appropriate. That
was reflected in the questions which had been posed for this Court in the
interlocutor of
[7] Senior
counsel contended that the proper way in which to proceed was to look at what
had been said, particularly by the Lord Justice General, in Drury v H.M. Advocate relating to
the mens rea of murder and culpable
homicide respectively. His contention
was that, in any case where provocation was put in issue, there was but
one question which was whether the accused had the mens rea necessary for murder.
He went on to argue that, in deciding that issue the question should be
asked whether the accused acted in the circumstances as an ordinary man would
have done. Accordingly, proportionality
would not disappear completely from the process of reaching of a decision as to
provocation. However, it would not be
the main focus for consideration.
[8] Senior
counsel went on to review the opinions delivered in Drury v H.M. Advocate in
detail. He observed that the existing
proportionality test lent itself to the two stage approach frowned on in
the opinion of the Lord Justice General at paragraphs 17-19. In the context of provocation based on sexual
infidelity, it was evident that the proportionality test could have no place,
on account of the impossibility of making a direct comparison between the
provocation and the resulting violence.
In that context, as was evident from Drury
v H.M. Advocate, the ordinary man
test had been adopted. It was the appellant's
submission that that test should have universal application in all cases of
provocation. If that suggestion were
adopted, there would be a single question for consideration. If that were the law, there would be no need
for a specific direction relating to proportionality, but proportionality would
have certain implications in the application of the ordinary man test. Senior counsel did not agree that the
proportionality test was specific; in any event, the ordinary man test was no
less specific than it. If the ordinary
man test were adopted, it was not submitted that it should be refined to take
account of the particular characteristics of the panel. In particular, it would be contrary to public
policy for the ordinary man test to take into account the special
characteristics of a panel, for example that he had a quick temper.
[9] If the course
commended by senior counsel for the appellant were adopted, it had to be
recognised that the approach followed by Lord Justice General Cooper in his
charge in H.M. Advocate v Smith (Glasgow High Court, 27 February
1952; unreported)
- at least in relation to proportionality - would require to be abandoned. Senior counsel observed that, if his
submissions were unsound and those which would be advanced by the Crown were
correct, there would be a state of affairs in which two different
approaches to provocation would be enshrined in the law, one relating to a
situation where sexual infidelity was founded upon and the other where violence
was the basis of the plea. It had to be
asked why those two tests should both operate. The proportionality test should be discarded
in favour of the ordinary man test; in the interests of the coherence of
the law what was important was that an approach based upon the question of
whether the mens rea for murder
existed, or not, was desirable. Senior
counsel went further, suggesting that the proportionality test was unnecessary
and misleading; it focused the jury's minds on what was contended to be the
wrong question. In any event, it was a
concept difficult to apply. One of the
problems in that connection was that, where one party to a violent altercation
was killed, in the nature of things, a jury would be likely to regard that
outcome as disproportionate as a response to lesser violence used at an earlier
stage by the deceased. It would be
preferable to utilise the single ordinary man test, which would be applicable
in all situations. Notwithstanding this,
senior counsel appeared to accept that the proportionality test could not be
said to be necessarily inconsistent with the test for which he contended, and
that it was difficult to envisage a case where a person's reaction to violence
was grossly disproportionate, yet where that person could be said nevertheless
to have reacted in the way that an ordinary man would. Senior counsel accepted the Crown's assertion
that very many cases had been decided on the basis of the existing law, founded
on the proportionality test. What might
be the implications of that was uncertain.
He wished to make clear that he was not advocating the adoption of the
English law of provocation, which possessed certain shortcomings. However, the ordinary man test possessed
simplicity and clarity. There was no
reason to suppose that it could not satisfactorily be operated in the context
of a provocation consisting in violence, as opposed to sexual infidelity.
[10] When pressed
regarding what decisions would require to be overruled or disapproved, if the
appellant's submissions were sustained, it was indicated that these were Thomson v H.M. Advocate, 1985 S.C.C.R. 448, Parr v H.M. Advocate 1991
S.C.C.R. 180, Lennon v H.M. Advocate 1991 S.C.C.R. 611, Low v H.M. Advocate 1993 S.C.C.R. 493, McCormack v H.M. Advocate
1993 S.C.C.R. 581 and Robertson v H.M. Advocate 1994 S.C.C.R. 589. Senior counsel recognised that once this
Court had answered the questions posed in the interlocutor of
Submissions on behalf
of the Crown
[11] The Advocate
depute began by summarising what he understood to be the contentions of the
appellant. It was plain that, while the
appellant was commending the ordinary man test, as a replacement for the
proportionality test, in provocation, it was not being contended that the
special characteristics of a panel had any part to play in the operation of the
desiderated test. That position was
understandable, since the law of
" ... whether the injury which
unexpectedly ends in death is of the same kind, or nearly commensurate with the
injury which gave occasion to it; ... ".
Reference was also made to Hume and to
"And if retaliation is excessive in
proportion to the provocation received, the crime will be murder."
That test was well established, clear and simple to operate
and should not be disturbed. As already
indicated the application of the ordinary man test had led to problems in other
jurisdictions. In that connection
reference was made to Attorney General
for Jersey v Holley [2005] 2 A.C.
580, particularly paragraph 10. In
[12] Thirdly, it
was recognised that the law currently reflected public policy in
[13] Fourthly, no
sufficient reasons had been advanced, nor did they exist, to justify a change
in Scots Law. There was no evidence of
injustice flowing from the present law, nor was there any evidence of
difficulty in understanding and applying the law as it was. The existing law was in accord with common
sense and fairness; also it was simple to apply.
[14] Fifthly,
provocation based on sexual infidelity had to be seen as an exceptional
concession. In that connection reference
was made to paragraph 26 of the opinion of the Lord Justice General in Drury v H.M. Advocate. There was no
reason why the approach properly adopted in that exceptional case should be
extended, so as to be of universal application.
That was particularly true in a situation in which conceivably sexual
infidelity might, in the future, be seen as an insufficient basis for a plea of
provocation. Changing social mores had resulted in a diminution of
the significance of sexual infidelity.
[15] Sixthly, it
was submitted that there was nothing wrong or illogical in the application of
the proportionality rule in relation to violent provocation. In this connection reference was made to
paragraphs 22-24 of the opinion of the Lord Justice General in Drury v H.M. Advocate. It had to be
recognised that there was a range of degrees of loss of control. Against that background the insistence upon
the proportionality of a reaction to violence was quite appropriate. Seventhly, a practical effect of
reformulation of the law would be that that reformulation would be seen as
having retrospective effect. It would be
most undesirable that appeals should be brought forward from cases long in the
past consequent upon such a reformulation of the law. If a change of the kind desiderated by the
appellant ought to be made, it should be made by Parliament, since, if that
were done, the change would not have retrospective effect.
[16] Turning to his
particular response to the submissions of senior counsel for the appellant, the
Advocate depute emphasised that no cogent criticism had been made of the
proportionality test. The appellant's
argument appeared to be based upon a desire to improve the coherence of the
law. In any event, public policy had a
large part to play in this area. That being so, it was unrealistic to expect perfect logic. The difficulties of endeavouring to achieve
that were highlighted in R. v Smith (Morgan) [2001] 1 A.C. 146. Refinements of the ordinary man test were
prone to result in nightmarish complexity and incomprehensibility, so far as a
jury was concerned.
[17] Senior counsel
for the appellant had argued that the proportionality test was difficult to
apply in respect that where the infliction of death in response to violent
provocation had occurred, there could be no proportionality. The fallacy in that approach was that what
had to be evaluated according to the proportionality test was not the
consequence of violence, but the extent of it.
Those were different.
[18] It had been
argued that the reasoning in Drury v H.M. Advocate was so persuasive that the
criterion developed there of the ordinary man ought to be extended to all cases
of provocation. It appeared to be
envisaged that that step would assist in the development of a more coherent
approach. However, there were
difficulties attached to attempting to develop a theory of mens rea for murder that took account of what were essentially
defences or, at least, pleas of mitigation to what would otherwise have been
murder. While it had been recognised in Drury v H.M. Advocate that the existing definition of murder was incomplete
and therefore inadequate, any further elaboration of that definition would be
dangerous. In this connection reference
was made to Jones v H. M. Advocate 1989 S.C.C.R. 726. In Drury
v H.M. Advocate there had been
criticism of the concept of murder being "reduced to culpable homicide". However, while such language might offend the
academic lawyer, in practice, it was a convenient means of explaining to a jury
the effect of a successful plea of provocation, or, indeed, of diminished
responsibility. In any event, in Drury v H.M. Advocate, there had been no unanimity in relation to that
aspect of the case. In view of the
opinion expressed by Lord Justice General Rodger in Drury v H.M. Advocate, it
should be recognised that Hume had propounded different modes of analysis of
provocation. A coherent analysis of
provocation in terms of the mens rea
of murder was not practicable, having regard to the public policy limitations
on the plea. The law should not be based
on such considerations.
Decision
The existing law
[19] Before us
there was little controversy over the state of the existing law in relation to
provocation taking the form of the infliction of actual violence. In Thomson
v H.M. Advocate, at page 458
Lord Justice Clerk Ross said:
"A minor assault of that kind,
whether or not one also takes into account the history of the business
dealings, is clearly insufficient to found a plea of provocation which would
palliate the taking of the deceased's life by stabbing. Where the victim has used force, there must
be some relation between that force and the violence of the retaliation. In H.M.
Advocate v Smith (unreported on
this point but referred to in Gordon,
supra, page 772), the Lord Justice General told the jury:
'It takes a tremendous amount of
provocation to palliate stabbing a man to death. Words, however abusive or insulting are of no
avail. A blow with a fist is no
justification for the use of a lethal weapon.
Provocation, in short, must bear a reasonable relation to the resentment
which it excites ...'."
In Parr v H.M. Advocate, at page 187, Lord
Justice General Hope expressed similar views:
"What we are left [with] in this case
therefore is simply a gross disproportion between the blows struck when the
appellant lost control of himself that night and what his mother did
immediately beforehand. In these
circumstances it is plain that the jury were not entitled to consider the
question of provocation, so there was, in my opinion, no misdirection in this
regard by the trial judge."
Again, in Lennon v H.M. Advocate, at page 614, Lord
Justice General Hope discussed the plea of provocation both in the context of
the crime of assault and in the context of homicide. He said this:
"The plea of provocation is of no
significance unless it mitigates everything that the accused has done to
inflict injury upon his victim. This can
be seen clearly where the retaliation has resulted in an act of homicide,
because the sentence which the accused will receive on conviction will always
be related to the ultimate act of killing which defines the nature of his
crime. It is immaterial, if the
conviction is one of murder, that the incident began
with some minor acts of violence to which the plea of provocation would have
applied if the accused had desisted at that stage. The sentence will be one of life imprisonment
whatever view might be taken of the initial acts if the accused had not carried
the matter to excess. Similarly, if the
victim lived and the crime is one of assault only and not homicide, the gravity
of the crime is measured by the most serious injury or the most sustained
violence which is inflicted on the victim, and if these acts cannot be
mitigated because they go beyond what was a reasonable response, the accused
will be sentenced accordingly and the plea of provocation cannot succeed. In short, the sole purpose of the plea is to
reduce the quality of the act from the crime of murder to one of culpable
homicide, or to mitigate sentence in cases of assault; and in either case cruel
excess, or a gross disproportion between the provocation offered and the
retaliation by the accused, will bar the plea because in that situation it can
be of no effect."
However, in Low v H.M. Advocate, at page 507, Lord
Justice Clerk Ross commented upon the language of Lord Justice
General Hope in Lennon v H.M. Advocate, just quoted. At page 507 he said this:
"We confess to being unhappy with the
use of the expression 'cruel excess' in relation to provocation. These words are, of course, often used with
regard to self-defence. For many years
there was confusion between self-defence and provocation, but the importance of
distinguishing between them has for some time now been recognised (Crawford v H.M. Advocate; Fenning
v H.M. Advocate). The phrase 'cruel excess' does not appear to
us to be entirely appropriate for the plea of provocation. Provocation involves loss of control and,
where there has been loss of control, there may well be retaliation which is at
least to some extent excessive. For that
reason we prefer the alternative words used by the Lord Justice General in Lennon v H.M. Advocate - 'a gross disproportion'. It is well established that where a plea of
provocation is taken, there must be some equivalence between the retaliation
and the provocation so that the violence used by the accused is not grossly
disproportionate to the evidence constituting the provocation. Accordingly, we feel that the words 'cruel
excess' should be confined to cases of self-defence. However, whatever language is used to
describe the limitation to the plea of provocation, it must always be a
question of circumstances and a question of degree."
In McCormack v H.M. Advocate, at page 588, Lord
Justice General Hope once again considered the criterion for a plea of
provocation. He said:
"In any event, the direction that
there must be a reasonable or reasonably proportionate relationship between the
conduct amounting to provocation and the act or reaction to it was sufficient
to inform the jury that the question was one of degree. There was no indication here that there had
to be a precise equivalence between the one and the other or that a fine
balance was required. The effect of the
direction was simply to warn the jury that they could not hold that the accused
was acting under provocation where there was an absence of any proper or
reasonable relationship between the provocation offered and the response to
it. As the Lord Justice Clerk said in Low v H.M. Advocate, whatever language is used to describe the limitation
to the plea of provocation, it must always be a question of circumstances and a
question of degree."
Finally, in Robertson
v H.M. Advocate, at page 593,
Lord Justice Clerk Ross stated:
"It is by now well established that
loss of control is not the only element in provocation. Although provocation does involve the loss of
control, there must be a reasonably proportionate relationship between the
violent conduct offered by the victim and the reaction of the accused. That has been well recognised from the time
of Hume [volume i at page 248].
'In short, it is to be understood,
that it is no excuse in our law, that the pannel is in a rage and the heat of
blood, though excited by some rude or contemptuous freedom taken with his
person: This passion must be occasioned
by some adequate and serious cause, some severe and continued assault, such as
is attended with trepidation and a dread of further harm, as well as with
present smart and pain of body; so that the sufferer is excusable for the loss of his presence of mind, and excess of the
just measure of retaliation. Excepting
the peculiar case of a husband killing the adulterer caught in the fact, there
seems to be no instance of culpable homicide in our record, which is not less
or more of this description; not a case of passion only, but of passion excited
by bodily suffering and mingled with terror and perturbation of spirits' ...
In recent years the Court has
repeatedly observed that there must be such a reasonable or proportionate
relationship between the conduct amounting to the provocation and the act of
the accused (Lennon v H.M. Advocate; Low v H.M. Advocate; and McCormack v H.M. Advocate). In these
cases the principle has been expressed in different ways but is has been made
clear that the retaliation used by the accused must not be grossly
disproportionate to the violence which has constituted the provocation. To desiderate a proportionate relationship between
the conduct amounting to the provocation and the actings of the accused is
essentially the same as stipulating that the violence used by the accused is
not disproportionate to the actions of the victim which constituted the
provocation."
Having traced these more recent formulations of the
requirements for a plea of provocation in the context of violence, we conclude
that there is no doubt that there is a rule of law as expounded particularly by
Lord Justice Clerk Ross in Robertson v
H.M. Advocate. It is to be noted that the Lord Justice Clerk
considered the proportionality test to have been "well recognised from the time
of Hume". And before us, senior counsel
for the appellant did not challenge the Advocate depute's submissions to a
similar effect, made under reference not only to Hume but also to inter alios
Burnett and Anderson.
Reasons advanced for
change of the present law
[20] As we
understood the submissions of senior counsel for the appellant, three reasons
were advanced in support of his submission that this Court should discard the foregoing
formulation of the criterion to be used in the context of provocation by
violence, in favour of a formulation which would involve the extension of what
we have referred to as the ordinary man test, beyond the area in which it has
hitherto operated since the decision in Drury
v H.M. Advocate, that is to say in provocation
taking the form of sexual infidelity, to all cases of provocation, including
sexual infidelity and provocation by violence.
In the first place, it was argued that the making of the change
desiderated would introduce greater coherence and clarity into the law of
provocation. Instead of there being
two criteria applicable to the two different situations mentioned, there
would be but one. It was said to be
reasonable to suppose that the law should be formulated in such a way that the
criterion selected should be applicable to all cases of provocation. In the second place, it was contended that
there was an inherent difficulty in applying the reasonably proportionate
relationship test to a situation where one person had offered ex hypothesi non-fatal violence as
provocation, but had subsequently been killed by the person provoked. In the third place - and we understood this
to be the principal argument advanced in favour of change - it was contended
that the adoption of the ordinary man test would be consistent with the
analysis of the law of provocation set forth, particularly in the opinion of
the Lord Justice General, in Drury v H.M. Advocate.
[21] In regard to
the first of these reasons, we would readily agree that, in principle,
coherence and clarity in the law are desirable ends. However, as in many other areas of human
endeavour, compromise may be necessary, having regard to other
considerations. Whatever rules of law are
to be applicable, they must be appropriate to the circumstances in which they
operate. As the law currently stands, in
relation to provocation taking the form of violence, the criterion of a reasonably
proportionate relationship between the conduct amounting to the provocation and
the actings of the accused is well established and has been clearly understood
over a period of many years. That
criterion appears to us to be apt in the context in which it applies. Violence as provocation can readily assessed and weighed in comparison to violence in
retaliation to provocation. We are
unaware of any practical difficulties experienced in the application of this
particular criterion within the scope of its operation. None was brought to our attention. In our view, this criterion is readily
explicable to juries. Indeed, on one
view, it may be thought to have been adopted as a more robust, more readily
understandable way of applying, if not the same, at least a similar standard to
that which would be applied, if the test of an ordinary or reasonable man were
to be selected. As recorded above,
senior counsel for the appellant appeared to accept that the proportionality
test could not be said to be inconsistent with the test for which he contended,
and that it was difficult to envisage a case where a person's reaction to
violence was grossly disproportionate, but he could be said nevertheless to
have reacted as an ordinary man would have done. Furthermore, in H.M. Advocate v Smith, the Lord Justice General gave directions which could be said
to have equiparated the two tests. It
is not difficult to see, however, why it has been held that the criterion of
proportionality could not readily be used in the context of provocation based
upon the discovery of sexual infidelity.
In the latter kind of provocation, no violence is involved with which
violence in retaliation could be compared.
In these circumstances it can be understood why the Court, in Drury v H.M. Advocate, adopted another test, the ordinary man test, for
application in the case of that kind of provocation. The result is, of course, the simultaneous
existence of two different tests, applicable to the different situations
described. No doubt, in a perfect world,
it might be thought desirable to have a unified test for all cases of
provocation. While such a unified test
could be established if the ordinary man test were rendered applicable to cases
of provocation by violence, we have not been persuaded that that course should
be taken simply to achieve a universally applicable test, since, as we shall
explain, we perceive certain disadvantages in the use of the ordinary man test
in circumstances where its use is not strictly necessary. Accordingly, we do not regard the first
reason for a change in the law advanced by senior counsel for the appellant as
persuasive.
[22] As regards the
second of the foregoing reasons, while there might be a superficial attraction
in the idea that there could never be a reasonably proportionate relationship
between violence, as provocation, which does not cause death, and violence as
retaliation, which does, we consider that his apparent anomaly does not survive
closer examination. What the reasonably
proportionate relationship test involves is a comparison between the violence
constituting the provocation and the violence used in retaliation to it, which
has caused death. The fact that death
has been caused by the latter violence does not mean that that violence was
necessarily disproportionate to the violence used in provocation. It is a matter of common experience that
death may be caused by quite modest violence. We consider that this particular
submission is fallacious because it proceeds upon the making of a comparison involving
the consequences of the violence used in retaliation, as opposed to its nature
and extent, which is what the reasonably proportionate relationship test
requires to be considered.
[23] The third of
the foregoing reasons relied upon by senior counsel for the appellant was
derived from a close consideration of the decision in Drury v H.M. Advocate
and, in particular, the analysis in the opinion of the Lord Justice
General. To that we now turn. The task which the Lord Justice General set
himself is described in paragraph 8 of his opinion. Although he recognised that the issue in the
appeal under consideration was apparently narrow, it was his view that it could
not be resolved without looking into wider aspects of the doctrine of
provocation and, more generally, into the law of murder and culpable
homicide. In undertaking that task, the
Lord Justice General conducted a wide-ranging examination of the law, as
expounded by Hume, Alison and Macdonald, in addition to considering a number of
relevant authorities. On the basis of
his consideration of the case of H.M.
Advocate v Hill 1941 J.C. 59,
arising out of events which took place in January 1941, where the accused
had shot both his wife and her lover, intending to kill both of them, but nonetheless
was convicted of culpable homicide on account of provocation consisting in the
discovery of sexual infidelity, in association with the other matters mentioned,
the Lord Justice General, it seems, came to the conclusion that, as he put it
in paragraph 17:
"In reality, however, evidence
relating to provocation is simply one of the factors which the jury should take
into account in performing their general task of determining the accused's
state of mind at the time when he killed his victim."
Even though, as in the case of H.M. Advocate v Hill,
there was an intention to kill, nevertheless, on account of the existence of
provocation as recognised by the law, there was not that "wickedness of heart",
envisaged by Hume as an essential ingredient of the mens rea of murder. As we
understand it, it was principally for that reason that the Lord Justice General
regarded the frequently used terminology of provocation "reducing murder to
culpable homicide" as essentially misleading.
[24] The Lord
Justice General's reasoning is brought together in what he said in paragraph 20
of his opinion:
"I shall return to examine Hume's
reasoning in more detail but, for present purposes, I simply draw attention to
the wide difference which he sees 'between that homicide which has no incentive
but wickedness of heart' (murder) and 'that which is in retaliation only of
grievous and alarming injuries suffered upon the spot, and has thus the double
excuse of bodily smart, and perturbation of spirits' (culpable homicide). Hume employs the same analysis when he says
that it would be excessive to prescribe the death penalty for a person who
kills under provocation 'since he has not sinned out of cruelty or wickedness
of heart'. In other words, Hume sees the
pain and the perturbation of spirits experienced by the person who has been
assaulted as prompting his action in killing his assailant. Because of these factors, even if he
intentionally kills his assailant, his state of mind is not of the same wicked
character as that of a murderer. He has,
of course, acted wrongly and deserves to be punished, but in a manner which
reflects both his lack of wickedness and the actual degree of his wrongdoing in
the circumstances. In my view, for the
reasons which I have already given, in its essentials Hume's analysis remains
valid for our law today: the person who
kills under provocation is to be convicted of culpable homicide rather than of
murder because, even if he intentionally kills his victim, he does not have
that wicked intention which is required for murder."
While the Lord Justice General's analysis undoubtedly
involved a departure from the more traditional formulations of the nature of
provocation, we have no reason to disagree with his approach to the underlying mens rea involved in murder and culpable
homicide, as it relates to a plea of provocation.
[25] As we
understood the submissions of senior counsel for the appellant, it was
essentially upon the basis of the Lord Justice General's analysis that he
proceeded to argue that the criterion for provocation which the law should
recognise in the context of the use of violence ought to be the same as that
which the Court in Drury v H.M. Advocate decided ought to be
applied in the context of provocation based upon sexual infidelity. In order to see whether that argument is
sound, it is appropriate to examine certain further passages in the Lord
Justice General's opinion in Drury v H.M. Advocate where consideration is
given to the criterion to be employed in cases of provocation based upon sexual
infidelity.
[26] In
paragraph 22 of his opinion in Drury
v H.M. Advocate, the Lord Justice
General considered the argument that, because the concept of provocation
involved a loss of control, there was no reason to interject any particular
criterion as regards the actions of the person provoked. In paragraph 23, rejecting that
argument, he said:
"In my view that particular argument
against the introduction of a concept of proportionality falls to be rejected
as being inconsistent with the approach our law takes to provocation. It really amounts to saying that a person who
has been provoked has no control whatever - is in effect in a state of frenzy
or temporary insanity. But if that were
indeed how our law understood the situation, then provocation should lead to
acquittal on the ground of temporary insanity.
Needless to say provocation has never been understood to have this
effect."
In that connection he derived support from what was said by
Lord Diplock in Phillips v The Queen [1969] 2 A.C. 130, at pp.
137 to 138.
[27] In our view,
it follows from that approach to a plea of provocation that the law requires to
develop, as a matter of policy, criteria which must be satisfied before
provocation in the relevant sense can be recognised, with the effects which are
well understood. The Lord Justice
General considered those matters in paragraph 25 of his opinion. There he said:
"In matters of homicide Scots law
admits the plea of provocation only within certain bounds which are
considerably narrower than those within which it operates in English law. In Scots law it applies only where the
accused has been assaulted and there has been substantial provocation. In English law, by contrast, even a slight
blow or mere jostling may be sufficient to admit the plea. In Scots law, no mere verbal provocation can
palliate killing. The same applied in
[28] The Lord
Justice General went on to consider further the criterion which ought to be
applied in a situation where the latter type of provocation was involved. In paragraph 29, he favoured what we
have referred to as the ordinary man test in such cases. In relation to that, it is appropriate to
note that he considered the possibility of whether the special characteristics
of a particular accused could be taken into account, but decided that, since in
the case before him it was not said that the accused had any special
characteristics, it was not necessary to consider how such a test might be
applied in the case of an accused who did.
We shall say more about that in due course. It is also to be noted that, in relation to
that aspect of the matter, as the Lord Justice General stated in the same
paragraph:
"In other systems, where matters are
regulated by statute, these questions have been hotly debated and they have
recently divided the Privy Council, the New Zealand Court of Appeal and the
House of Lords."
[29] Finally, it is
appropriate to note what was said by the Lord Justice General concerning that
type of provocation, with which we are concerned here, where the provocation is
based upon the infliction of physical violence by a person who is then
killed. He refers to the series of cases
which we have already mentioned in which the reasonable proportionality test was
affirmed. He goes on to state in
paragraph 35:
"This bench of five judges was
indeed convened so that we could, if need be, review those earlier cases. For the reasons which I have given, I am
satisfied that the trial judge was in fact wrong to direct the jury to apply
that test in the present case where the provocation did not take the form of an
assault. But, precisely because the
present case is distinguishable in this way, we did not in the event hear any
substantial argument as to the validity of the requirement, as a matter of law,
that in the case of provocation by assault the retaliation should not be
grossly disproportionate to the assault constituting the provocation. I accordingly express no view on the point,
except to notice that, even in England and New Zealand, where there is no
requirement that, as a matter of law, the response should be proportionate to
the provocation, the nature and degree of the accused's response are none the less
aspects of the evidence to which the jury can have regard when deciding whether
the accused reacted in the way in which an ordinary man would have been liable
to react."
[30] Against the
background of the foregoing treatment of the criterion by which provocation,
taking the form of the discovery of sexual infidelity, ought to be evaluated
and the Lord Justice General's earlier analysis of the mens rea involved in murder and culpable homicide, as it relates to
a plea of provocation, we perceive no necessary connection between these two
matters. Whatever view one may take
about his analysis of mens rea, it does
not lead necessarily to a conclusion on the question of the criterion that
should be adopted for use in the assessment of a plea of provocation, either in
the context of sexual infidelity, or violence, as the basis of the plea. The latter issue, as the Lord Justice General
points out in the passage quoted from paragraph 25, requires to be considered
in the light of public policy. Putting
the matter in another way, the tribunal of fact, in cases where provocation is
pled, requires to apply some appropriate criterion to
assess the plea, quite distinct from any jurisprudential theory relating to mens rea in such cases. For these reasons we would reject senior
counsel for the appellant's second main submission. He contended that the adoption of the
ordinary man test would be consistent with the Lord Justice General's analysis
of the mens rea of murder and
culpable homicide, as it related to a plea of provocation. To that contention we consider that the riposte
can be made that so would the adoption of the reasonable proportionality test
be consistent with that analysis.
Finally, it is worth observing that it is likely that the Lord Justice
General was of the same view, else he would have been unable logically to
reserve his opinion as he did in paragraph 35.
[31] In these
circumstances, it is then appropriate to consider whether there exist any
reasons of public policy, or expediency, to justify the change in the law
relating to provocation, based upon violence, advocated by senior counsel for
the appellant. In that connection,
during the course of the debate before us, consideration was given to the law
of
"First, the provocation had to be
such as to temporarily deprive the person provoked of the power of
self-control, as a result of which he committed the unlawful act which caused
death. Secondly, the provocation had to
be such as would have made a reasonable man act in the same way. These two requirements are commonly
called the subjective and objective elements of the defence respectively. In R. v Duffy (Note) [1949]
1 All.E.R. 932 the gist of the defence was encapsulated by Devlin J.
in a single sentence in his summing up, which was afterwards treated as a
classic direction to the jury:
'Provocation is some act, or series
of acts, done by the dead man to the accused, which would cause in any
reasonable person, and actually causes in the accused, a sudden and temporary
loss of self-control, rendering the accused so subject to passion as to make
him or her for the moment not master of his mind.'
Two decisions of the House of
Lords subsequent to Mancini added
glosses to these principles. First, in Holmes v Director of Public Prosecutions [1946] A.C. 588 it was decided that
mere words could not constitute provocation, whatever their effect on the
reasonable man might have been.
Secondly, in Bedder v Director of Public Prosecutions [1954]
1 W.L.R. 1119 it was decided that the 'reasonable man' was a wholly
impersonal fiction, to which no special characteristic of the accused should be
attributed. The alleged provocation there
was that the victim, a prostitute, had taunted the accused for his
impotence. The accused was in fact
impotent but the House held that the jury had properly been directed to
consider whether a reasonable man who was not impotent would have reacted in
the same way."
[32] The law of
"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 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."
[33] However, in R. v Smith
(Morgan), the extent to which section 3 of the 1957 Act enabled particular
characteristics of the defendant to be attributed to the hypothetical
reasonable man, in determining the standard of self-control to be expected of him,
was considered. The defendant had relied
on the defence of provocation and had adduced psychiatric evidence of a mental
condition which had had the effect of reducing his power of self-control below
that of an ordinary person. The judge had
directed the jury that the defendant's mental impairment was a characteristic
to be attributed to the notional reasonable man, when determining whether it affected
the gravity of the provocation to a reasonable man, but not his loss of
self-control. The defendant was
convicted of murder. The Court of Appeal
(Criminal Division) allowed the defendant's appeal and substituted a verdict of
manslaughter on the grounds that evidence of the defendant's mental impairment
was a characteristic to be attributed to the notional reasonable man for the
purposes of the defence of provocation under section 3 of the Act and
that, in so attributing it, no distinction was to be drawn between its
relevance to the gravity of the provocation to the reasonable man and his
reaction to it, and that therefore the judge's direction to the jury was
wrong. There was an appeal by the Crown
to the House of Lords which was dismissed.
It was held by a majority of three to two that, in determining under
section 3 of the 1957 Act whether provocation was enough to make a
reasonable man do what the defendant did, the jury was required to ask whether
the degree of self-control exercised by the defendant was that which reasonable
people with his characteristics would have exercised; that all the particular
characteristics of the defendant were to be taken into account in deciding both
whether he was in fact provoked and whether the objective element of
provocation was satisfied; that the question for the jury was whether the
circumstances were such as to make loss of self-control sufficiently excusable
to reduce the gravity of the offence from murder to manslaughter.
[34] However, in
[35] Our purpose in
referring to section 3 of the Homicide Act 1957, Article 4 of the Homicide
(Jersey) Law 1986 and to the associated authorities is to show that the
adoption of an objective standard related to the reasonable man, in the context
of provocation, has given rise to numerous problems. In Attorney
General for Jersey v Holley, at
paragraph 27, Lord Nicholls of
"In expressing their conclusion above
their Lordships are not to be taken as accepting that the present state of the
law is satisfactory. It is not. The widely held view is that the law relating
to provocation is flawed to an extent beyond reform by the courts: see the Law Commission Report on Partial
Defences to Murder (Law Com No 290) (2004) (Cm 6301),
para 2.10. Their Lordships share
this view. But the law of provocation
cannot be reformulated in isolation from a review of the law of homicide as a
whole. In October 2004 the Home
Secretary announced the Government's intention to review the law of
murder. Given the importance of this
area of the criminal law it is imperative that a review, of all aspects of the
law of murder, should be undertaken as soon as possible."
[37] While the
criterion of the ordinary man contended for on behalf of the appellant in this
case is, of course, different from the concept of the reasonable man, enshrined
in section 3 of the 1957 Act, we apprehend that the introduction of the
concept of the ordinary man, as a criterion by reference to which provocation might
be judged, into Scots law, save where it has been considered necessary, as in Drury v H.M. Advocate, would be most unwise, in the light of the
difficulties which a comparable objective standard has created in the law of
England. In the case of the use of the
ordinary man concept, the same issues would, we apprehend, be likely to emerge
concerning the particular characteristics of the accused as have emerged and
have created difficulties in connection with the use of the reasonable man
concept in
[38] Furthermore,
in Drury v H.M. Advocate Lord Nimmo Smith, in paragraph 9 of his opinion,
speaking of the introduction of a change of criterion in relation to
provocation in the context of sexual infidelity, said:
"The change proposed by the Advocate
depute would be radical. Provocation by
infidelity is already a 'peculiar case', in Hume's phrase, and it would be
highly undesirable to redefine its scope without undertaking a comprehensive
review of provocation in all its various forms, whether or not already
recognised by the criminal law. This
would be a matter for the Scottish Parliament.
In
Lord Mackay of Drumadoon, in paragraph 3 of his opinion
said:
"In the first place, I agree with
Lord Nimmo Smith that if there is to be any major reconsideration of the
doctrine of provocation, as it applies to charges of murder, then such
reconsideration requires to be undertaken by the Scottish Parliament and not by
this court ... Changes of that nature involve issues of considerable
sensitivity. They are for politicians to
decide upon, not judges."
We are in agreement with these expressions of opinion.
[39] In all of
these circumstances and for the reasons explained, we have reached the
conclusion that there are no good reasons for us to effect an alteration in the
criterion of reasonable proportionality which is currently applied in relation
to provocation in the context of violence.
We favour the formulation of the law as set out in the Opinion of the
Court delivered the Lord Justice Clerk in Robertson
v H.M. Advocate already quoted. Accordingly, we answer the first question
posed in the interlocutor of
[40] Having reached
this conclusion, we shall remit this appeal to an ordinarily constituted Court
of three judges to reach a determination on the grounds of appeal tabled
by the appellant.