Scottish High Court of Justiciary Decisons

At advising, on 21st December 1990,—

LORD JUSTICE-GENERAL (Hope) .—The appellant was found guilty in the High Court at Edinburgh on 3rd September 1990 on a charge of murder. The charge was that on 22nd March 1990 in a motor car at a primary school in Armadale he had murdered his wife Linda McKay, by stabbing her with a knife. The appellant had admitted killing the deceased. The only question was whether the verdict should be one of murder or of culpable homicide. Two grounds were suggested for the lesser verdict. The first of these was diminished responsibility, but counsel for the appellant also suggested to the jury that the charge could be reduced to culpable homicide on the ground of provocation. This was because the appellant had been provoked into doing what he did by something which his wife said to him in the course of the incident. This was the subject of a direction by the trial judge that the question of provocation did not arise in this case because there had been no suggestion in the evidence that the appellant had lost control of himself because he was agitated and excited and alarmed by violence. The appeal is taken on the ground that the trial judge erred in law when he told the jury that the question of provocation was not open to them in this case.

The incident took place in the car park of a school where the deceased had gone by car to collect her ten year old son, Scott. She had with her in the car her daughter, Siobhan, who was about one year old. The appellant and the deceased had been married on 23rd December 1989 but about one week previously they had separated. He had gone by car to the car park in the hope of seeing and speaking to her and of seeing the children. Siobhan had been born on 14th April 1989 some nine months before the marriage but she had been registered in the appellant's name as the father. The appellant and the deceased had been living together at about the time of her conception and he accepted the child as his own. The appellant explained in his evidence that he had met the deceased earlier that day in Edinburgh when she had told him that she had been to see a solicitor and that she wanted him out of the matrimonial home where he was still living. When he met her in the car park she told him that she had started proceedings for separation, custody, suspension of occupancy rights in the matrimonial home and interdict. He said that he would move out of the house until their difficulties were resolved and that there was no need for her to consult a solicitor. He told her that they were not long married and that there were two children to think about. He said that his wife then said, "What are you talking about? It's not as if she's yours anyway". Scott then got into the car and the deceased told the appellant that she had to get going and that he was to get some money for her out of his car because she needed cash. He went back to his car and noticed that there was a knife on the floor; he then heard the engine of his wife's car starting and saw it moving; at that he ran over, opened the door and attacked and killed his wife with the knife. He said in evidence that he was thinking about the statement which she had said about Siobhan. She had never said that he was not the father when the child had been registered in his name, and as far as he was concerned he was the father of the child.

Senior counsel for the appellant submitted that the trial judge was in error in directing the jury that the defence of provocation was not open to them on these facts. He pointed out that, while the parties were not married until some months after Siobhan was born, they were living together at about the time of her conception. The remark that she was not the appellant's child was therefore the equivalent of a confession of adultery. It had been recognised for a long time that a person who finds his wife and paramour in the act of adultery and in the heat of the moment kills them is guilty only of culpable homicide. In H.M. Advocate v. Hill 1941 JC 59, this exception had been extended to cases where the husband had been provoked by a confession of adultery. It had also, in McDermott v. H.M. Advocate 1973 J.C. 8, been extended by Lord Cameron to a case where the accused had begun to suspect a sexual association between his victim and a girl to whom he was not married but with whom he had been living together as man and wife. He had acted under the provocation of seeing them behaving affectionately towards each other in his presence. There was no previous case which was on all fours with the present one, but it was sufficiently close to the recognised exceptions to the rule that provocation by violence was required. It was enough that the appellant had been living with the deceased at the time when the child was conceived for her remark to be treated in the same way as if they had been married to each other at that time and as if she had been telling him that the child was the result of an act of adultery.

While senior counsel's argument can be seen as inviting us to extend the exception, the learned advocate-depute for his part invited us to hold that the exception had already been extended too far. He resisted the argument that it was available to the appellant in this case on the ground that the appellant was not married to the deceased when the child was conceived, so no question of her adultery could arise. He submitted that the exception had been taken too far by Lord Cameron in McDermott v. H.M. Advocate when he applied it to a situation where the accused was not married to the girl whose association with the victim had provoked him to strike the fatal blow. His argument was that the only proper justification for the exception was to be found in the concept of adultery as a matrimonial offence, that is to say against what Lord Guthrie in H.M. Advocate v. Callander 1958 S.L.T. 24 had described as "the duty of the wife". It was unsatisfactory to allow the exception to be extended to relationships outside marriage in which there could be no question of a matrimonial offence and where the circumstances might vary greatly from case to case. He also said that if we were inclined to hold that provocation was available in this case we should obtain the transcripts of the relevant evidence and the speeches to see exactly what the facts were which had been put before the jury in support of this defence.

I think that two questions arise for our decision in this appeal. The first is whether the direction by Lord Cameron in McDermott v. H.M. Advocate went too far and should now be disapproved. The second is whether, if we were to approve of that direction, the trial judge should have made a similar direction in this case.

On the first point I am in no doubt as to what we should do. The direction which was sought and given in McDermott was that if the jury were satisfied on the facts and on the evidence that there was at the critical time when the assault took place, albeit momentarily, loss of self control by the pannel due to his discovery of an illicit association between the girl who was living with him as his wife and the victim of the assault, and further that the victim approached the girl with affectionate gestures which were reciprocated at the very moment of the assault, these circumstances might serve to reduce the quality of the offence from one of murder to one of culpable homicide. The case went to appeal on another point, but at p. 11 Lord Justice-General Emslie said this:

"The trial judge gave this direction, no doubt upon the view that the circumstances relied on might be thought to be analogous to those disclosed in cases such as H.M. Advocate v. Gilmour 1938 J.C. 1, where a husband kills in a sudden transport of passion when he discovers his wife in adultery. It is in light of this direction that the verdict of guilty of culpable homicide is to be understood."

The validity of the direction was not the subject of argument, and all one can say is that it was neither approved of nor disapproved. But it seems to me that it reflects the development of law and practice in regard to cohabitation outside marriage since the exception was first recognised. In Hume on Crimes (3rd edn.), i, 248 the exception is described as confined to "the peculiar case of a husband killing the adulterer caught in the act". He acknowledged the anomaly of the exception at p. 246 where he pointed out, under reference to cases of homicide by a husband on a person found in adultery with his wife, that the homicide "is here done on the principle of rage and revenge, unaccompanied with that fear of further violence, or that trepidation and alarm, which in the ordinary case of an assault on the body of the killer comes with his resentment and materially strengthens his defence". The explanation for the exception seems to lie in what Lord Patrick in Hill v. H.M. Advocate described at p. 62 as "the heat of sudden and overwhelming indignation" which an act of infidelity may provoke. But it is the act of infidelity, rather than the description of it as adultery, which provokes the response. Marriage involves an undertaking of fidelity, but so also may a period of living together as man and wife. Section 18 (1) of the Matrimonial Homes (Family Protection) (Scotland) Act 1981 extends many of the rights which are available to spouses under that Act to cohabiting couples who are not married. Section 14 (4) of the Administration of Justice (Scotland) Act 1982 amended the definition of "relative" in Sched. 1 to the Damages (Scotland) Act 1976 to include "any person, not being the spouse of the deceased, who was immediately before the deceased's death, living with the deceased as husband and wife". The need for legislation of this kind, of which these are only a few examples, reflects the common experience today that many people choose to live together and enter into lasting and faithful relationships without getting married. It would be unrealistic for the criminal law to ignore this development, and Lord Cameron's direction can be seen to be entirely consistent with the social policy of our time. No doubt there may be difficulty in particular cases in deciding whether the relationship is of such a character that fidelity, as in marriage, is expected on both sides. But I do not think that we should be deterred by this from recognising that the heat of sudden and overwhelming indignation may in fact be just as powerful in the case of couples who are cohabiting as in the case of those who are married to each other.

This brings me to the question whether a similar direction should have been given in this case. On this point I am not persuaded that the trial judge should have made such a direction. There are a number of reasons why I am of this view. In the first place I am impressed by the fact that very little seems to have been made of the argument until a late stage in the trial, and then only briefly in counsel's speech. The trial judge tells us in his report that it was the question of diminished responsibility which appeared to be the single live issue during the trial and that the question of provocation was advanced only briefly to the jury. This information is borne out by the minute of proceedings which discloses that at the close of the defence case the advocate-depute submitted that there was insufficient evidence of diminished responsibility to go to the jury but makes no mention of any submission on the question of provocation. Senior counsel who appeared for the appellant in the appeal did not represent him at his trial. He based much of his argument on the appellant's history as described in a psychiatric report which was produced and spoken to by Dr Antebi, Physician Superintendent, Gartloch Hospital, Gartcosh. But it is hard to believe that if the facts were analysed at the trial as carefully and clearly as senior counsel was able to do in the appeal the issue would not have been more prominent than is indicated in the report of the trial judge. Had this been the only point which troubled me I should, as we were invited to do by the advocate-depute, have wished to see the transcript of Dr Antebi's evidence and of the speech of defence counsel at the trial. It goes without saying that we could not, at this stage, entertain arguments for a defence of provocation based on an analysis of Dr Antebi's report which were not advanced at the trial at which Dr Antebi himself was present and gave evidence. But the matter goes further than that, in my opinion, because I do not think that the facts of this case fall within the proper limits of the exception.

The following is a summary of the history of the appellant's relationship with the deceased, as I understand it, taken mainly from Dr Antebi's report. They first met in about 1984 and they cohabited together for about one year. The appellant was at that time married to another woman, from whom he separated on 1st March 1986 because of his relationship with the deceased. The appellant and the deceased resumed their relationship, which was always a stormy one, in May 1987 and they lived together until February 1988 when they again separated. They had no contact with each other of any kind until about June or July 1988 when they spent a night together and then resumed cohabitation. The appellant was aware that the deceased had been associating with other men during this period of separation. About three weeks after they had resumed cohabitation the deceased said that she was pregnant. There are references in other medical reports to doubts as to whether this was the appellant's child. He had been receiving medical treatment over a number of years concerning a condition which had perhaps rendered him infertile. Nevertheless when the child was born on 14th April 1989, after an initial protest by the deceased which the appellant described in his evidence, she was registered in the appellant's name as the father. On 27th June 1989 the appellant was divorced from his first wife with whom he had no sexual relationship since 1st March 1986. He ceased to have contact with his children by his first marriage in September 1989, and on 23rd December 1989 he was married to the deceased.

The circumstances which arose on 22nd March 1990 were that the parties had again separated for about one week, and the deceased had told the appellant that she wanted him out of the matrimonial home. The remark that Siobhan was not his child was made against the background of this dispute. It did not disclose in clear and unequivocal terms that the deceased had been committing adultery or that she had been having intercourse with another man during a period when she and the appellant were living together as man and wife. The timing of Siobhan's conception is uncertain, and at best for the appellant they had only just resumed cohabitation after a lengthy period when, as he knew, she had been associating with other men. No act of infidelity took place in his presence nor was any such act described. In no sense can it be said that she was caught in the act of doing something of this kind. I think that it is very doubtful whether, even if the parties had been married at the time of the conception, an insulting remark of this kind, made in the context of the separation and marital breakdown which had just occurred, could have provided a sufficient basis for the plea. But in the circumstances of this case, even if they had been analysed at the time in the detail to which they were in senior counsel's argument, the plea was not available.

I would refuse this appeal.

LORD ALLANBRIDGE .—I agree with your Lordship in the chair and have nothing to add.

LORD COWIE .—I agree with your Lordship in the chair and have nothing to add.