Freely Available British and Irish Public Legal Information
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]
Scottish High Court of Justiciary Decisons
You are here: BAILII >> Databases >> Scottish High Court of Justiciary Decisons >> Drury v. Her Majesty's Advocate [2001] ScotHC HCJAC_121 (02 February 2001)
URL: http://www.bailii.org/scot/cases/ScotHC/2001/HCJAC_121.html
Cite as: 2001 SLT 1013, 2001 SCCR 583, [2001] ScotHC HCJAC_121, 2001 GWD 26-1027, [2001] HCJAC 121
[New search] [Help]
JISCBAILII_CASE_CRIME_SCOTLAND
APPEAL COURT, HIGH COURT OF JUSTICIARY
|
Lord Justice General Lord Cameron of Lochbroom Lord Johnston Lord Nimmo Smith Lord Mackay of Drumadoon
|
Appeal No: C76/99 OPINION OF THE LORD JUSTICE GENERAL in APPEAL by STUART DRURY Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______ |
Appellant: Prais, Q.C., Hamilton; Anderson Strathern W.S.
Respondent: Doherty, Q.C., A.D.; Crown Agent
2 February 2001
[1] On 15 February 1999 at the High Court at Glasgow the appellant, Stuart Drury, was unanimously convicted of murder. The offence occurred in the early hours of 5 September 1998 and the victim, Marilyn McKenna, died the following day. At his trial the appellant did not dispute that he had assaulted the deceased with a hammer and had so caused her death. The issue for the jury was whether the appellant was guilty of murder or culpable homicide. The defence contention that he should be convicted of culpable homicide only was put on two bases. First, it was said that he had not intended to kill the deceased and had not displayed the degree of wicked recklessness required for murder. The jury's verdict shows that they must, at least, have found that the attack displayed the wicked recklessness needed for murder. No issue in the appeal turns on this aspect of the case. Alternatively, the defence contended that the appellant had killed the deceased when acting under provocation. This contention lies at the heart of the appeal: it is said that the trial judge misdirected the jury on the approach which they should adopt in deciding whether to return a verdict of culpable homicide on the ground of provocation. [2] The appellant and the deceased had lived together from August 1995 until December 1996. Despite a period of separation after that, it was common ground at the trial that the relationship continued until March 1998. The Crown position was that the relationship came to an end at that point and that the deceased then wanted nothing more to do with the appellant. The defence position was that, even though they did not live together after that time, the appellant and the deceased had continued to see one another and to enjoy a sexual relationship over the months before the appellant's attack on her in September 1998. The trial judge considered that there was evidence from the appellant, his father and another witness on the basis of which the jury could hold that some form of relationship had continued between the parties during that period. At the trial the Crown did not dispute that, if the relationship did continue, it was of such a character as to entitle the appellant to expect sexual fidelity on the part of the deceased. [3] Witnesses to the events in the early hours of 5 September saw two men and a woman in Abbeyhill Street, Glasgow. There was an argument and one of the men left. The other man (the appellant) then assaulted the woman (the deceased) with a claw hammer. The appellant walked away, leaving the deceased lying badly injured on the pavement. He returned shortly afterwards but then went away again. In the attack the deceased sustained severe and extensive blunt-force injuries to the head and neck, including extensive lacerations to the face and mouth, with multiple comminuted fractures of the underlying facial bones and tooth sockets. The expert evidence was to the effect that there had been at least seven blows with the hammer. The fatal blow was to the left side of the neck and it had damaged the internal and external carotid arteries, resulting in an interruption to the blood supply to the brain which had caused death. One of the Crown pathologists said that the facial injuries were the worst she had ever seen. [4] In evidence the appellant said that he had arranged to go to the deceased's house at about midnight on 4 September. During the evening he drank about six bottles of beer. He arrived at the house shortly before midnight and saw a light on. He knocked on the door and heard the sound of people running about inside. He shouted to the deceased through the letter-box but got no answer. He then went round to the back of the house to see whether there was anyone in the bedroom and, while he was there, he heard the front door slamming and saw a man with blond hair running from the house. He said that he did not know what was going on and thought that the man might have been an intruder. He picked up a hammer which, he said, was kept near the coal bunker for the purpose of getting into the house when the deceased had lost her keys. The appellant said that, when he got out into the street, he turned right and saw the deceased in front of the other man. They walked together and, when he caught up with them, he told the man to leave, which he did. He then asked the deceased what was going on and she replied "What do you think?" He had previously seen the other man adjusting his shirt and he thought that the deceased and the other man had been having sex. The appellant accordingly took the deceased's reply to be an admission by her that they had indeed been having sex. He then lost control due to what the deceased had said to him and due to what he thought had happened. The appellant said that he did not recall hitting the deceased with the hammer and the next thing he remembered was seeing her lying on the ground and seeing blood. He walked away, went back, tried to help her and then left the scene. The appellant said that he had loved the deceased and regretted what he had done. [5] On the basis of that evidence - which was, of course, disputed by the Crown - the trial judge left the issue of provocation to the jury. As I have explained, the judge was satisfied that there was evidence, which the jury could have accepted, that at the relevant time the relationship between the parties remained one in which the appellant was entitled to expect sexual fidelity on her part. That being so, the trial judge considered that, in the light of the decision of this court in McKay v. H. M. Advocate 1991 JC 91, the discovery that the deceased had been having intercourse with another man was a basis upon which the jury might return a verdict of culpable homicide. At the trial the Advocate Depute did not make any submission that this was not the case. Nor was any such submission advanced by the Crown when the appeal first called before the appeal court. At the hearing before Five Judges, however, the Advocate Depute indicated that he now wished to argue that the trial judge had been mistaken in holding that there was evidence of a relationship of a kind which could give rise to a relevant plea of provocation. We declined, however, to allow him to advance that submission, which came much too late and raised an issue that had never been put to the trial judge for his consideration, either during the trial or in the course of the appeal. We must therefore address the appeal on the footing that there was indeed evidence which would have entitled the jury, if they accepted it, to hold that the appellant could have expected sexual fidelity on the part of the deceased. The real area of dispute in the appeal related to the trial judge's directions on provocation. [6] In fact, in presenting the appeal, Mr. Prais, Q.C., did not quarrel with most of the directions on provocation, which were in familiar terms drawn from well-known passages in works of authority and in judgments of this court. His criticism related to two particular passages, the first of which occurred at the end of those directions. The first passage was in these terms:"Further, and this is important, for the plea of provocation to succeed, the retaliation or violence used by the accused must not have been grossly disproportionate to the provocation. Now, while you mustn't judge the matter on too fine a scale, if the degree of violence used by the accused was grossly disproportionate to the provocation to which he was subjected, then the plea of provocation cannot succeed."
His Lordship referred to the evidence on which defence counsel had relied in support of the plea of provocation and summarised the defence position in this way:
"So the defence case is that the accused had not intended to kill or displayed the required degree of wicked recklessness and that, even if he had, he'd acted under provocation and that had the effect of reducing the crime from murder to culpable homicide."
The trial judge then went over the corresponding Crown position on the matter of provocation, before saying:
"Well, you must take into account all that the Advocate Depute said to you on the issue of provocation. You should also consider whether or not the degree of violence used by the accused was, or was not, grossly disproportionate to the provocation. If it was grossly disproportionate, then the plea of provocation cannot succeed."
This is the second passage which Mr. Prais criticised.
[7] Put most narrowly and most succinctly, Mr. Prais's criticism of the trial judge's directions was that, in the case of provocation based on the discovery of sexual infidelity, there was - and indeed there could be - no requirement in law that the violence used by the accused should not have been disproportionate to the provocation offered by the deceased. These two directions, the importance of which the trial judge had stressed to the jury, were accordingly misdirections of a material nature and constituted a miscarriage of justice. We should therefore allow the appeal and quash the jury's verdict. Although he submitted, almost for form's sake, that the court should substitute a verdict of culpable homicide, Mr. Prais recognised that, in the light of the evidence before the jury at the trial, the more appropriate course for the court, if it allowed the appeal, would be to grant authority to the Crown to bring a new prosecution. The Advocate Depute submitted that the passages in the trial judge's charge contained no misdirection. If, however, the court concluded that they did, then we should grant authority for a new prosecution. [8] Although the issue in the appeal is apparently narrow, it cannot be resolved without looking into wider aspects of the doctrine of provocation and, more generally, into the law of murder and culpable homicide. In doing this, I shall examine the account of the law given by Hume and Alison. As Mr. Prais was at pains to point out, both of these authors wrote rather a long time ago. I, for one, would not think it right to accord to their writings any superstitious reverence which left no room for evaluating their exposition of the law in the light of later experience, later developments or more modern analysis. Nevertheless, if approached with these factors in mind, Hume's account, in particular, is useful because it helps to fit provocation into the overall scheme of our law on murder and culpable homicide. One cannot help feeling that some at least of the difficulties of the subject have arisen because provocation has sometimes tended to be treated as an isolated topic rather than in its proper place within that wider context. [9] Since the issue between the Crown and defence at the trial was the issue between murder and culpable homicide, the trial judge had to give the jury directions on the definition of both of these crimes. What he said was this:"An assault is any deliberate attack on the person of someone else, whether it results in injury or not, and evil intent is of the essence of the crime of assault.
Now, murder according to our law is constituted by any wilful act causing the destruction of life, either intending to kill or displaying such wicked recklessness as to imply a disposition depraved enough to be regardless of the consequences. So murder is any wilful act causing the destruction of life, either intending to kill or displaying such wicked recklessness as to imply a disposition depraved enough to be regardless of the consequences; that is, the assailant didn't care whether the victim lived or died. So evil intent is of the essence of the crime of murder, either acting with a deliberate intention to kill or at least with reckless indifference to the consequences to the victim of the violence.
Now, in this connection one cannot, of course, see into someone's mind. You can only draw an inference from what he's done against the background in which he acted. So the necessary intention to kill or wicked recklessness would have to be capable of being inferred from the actings of the assailant, and you have to decide whether that is an inference which can properly be drawn in the circumstances of this particular case.
Now, you heard counsel refer to the alternative verdict of guilty of culpable homicide. Now, culpable homicide is the term applied to a case where a person is assaulted and dies as a result of the assault but where the killing is not so grave as to constitute murder but which is, nevertheless, culpable and not justified; a case where there was no intention to kill and where the circumstances fall short of displaying the required degree of wicked recklessness to constitute murder but, as I say, where the killing is still culpable and results from a criminal act such as assault. So, as I say, culpable homicide applies where a person is assaulted and dies but the assailant did not intend to kill and did not display the required degree of wicked recklessness to constitute murder."
"has a mortal purpose, and yet is not in the first degree of guilt as a murderer: Because he is not actuated by wickedness of heart, or hatred of the deceased, but by the sudden impulse of resentment, excited by high and real injuries, and accompanied with terror and agitation of spirits."
Similarly, Alison (Vol. 1, p. 92) gives as the first way of committing culpable homicide:
"By the intentional infliction of death, in circumstances which law deems blameable, though not so much as to amount to murder."
Under that heading he goes on to discuss cases where the killing takes place as a result of provocation (Vol. 1, pp. 92 - 94).
[14] Perhaps the clearest modern example of this kind of case is H.M. Advocate v. Hill 1941 JC 59. The events took place in January 1941 and at the time the accused was a corporal in the military police stationed in England. When he returned home to Springburn, his wife was in the house and another man, who was serving in the Navy at Greenock, came into the house. In the ensuing discussion it emerged that the wife and the other man had had sexual relations in the matrimonial home on at least one occasion. The accused went to another room, got the service revolver which he was bound to carry, shot the man and then shot his wife, before giving himself up to the police. Although the accused said that he had been "driven to it", it is plain that he intended to kill both of his victims. None the less, in accordance with the trial judge's direction that it was open to them to do so, the jury convicted the accused of culpable homicide. [15] Since culpable homicide covers cases of intentional killing carried out under provocation, it must also cover cases where the assault displays a degree of recklessness which, but for the provocation, would lead to the inference that the accused had acted wickedly. That being so, in this case the trial judge's charge to the jury on the matter of culpable homicide was not simply incomplete: it actually failed to give them any direction on the very kind of culpable homicide which was in issue under the second leg of the defence case, viz. that the appellant had killed while under the influence of provocation. If the jury had duly absorbed and faithfully tried to apply the trial judge's directions on culpable homicide, they might have been left in some doubt as to whether they could convict the appellant of culpable homicide if, for instance, they concluded that, in response to discovering her infidelity, the accused had intentionally killed the deceased. What the trial judge should have done was to give the jury further directions dealing with culpable homicide on the basis of provocation. The fact that this very experienced trial judge omitted to do so is in itself a testimony to the somewhat confusing state of some aspects of our law on provocation. [16] So far as homicide is concerned, in Scots law provocation has always operated as an excuse and never as a justification. In other words, an assailant who kills in response to provocation has never been entitled to be acquitted; he has merely been entitled to be convicted of culpable homicide rather than of murder. But the doctrine of provocation applies also in cases of assault. Where A assaults B in response to an assault by B, it has been suggested that, in the law of today, the assault by B cannot justify A's assault, but may merely serve as an excuse which can be taken into account in mitigation of sentence. See Gordon, Criminal Law (second edition), pp. 830 - 831. In the time of Hume, however, provocation in the form of an assault could indeed justify retaliation of a suitable level, to deter as well as to punish the initial assailant. Therefore, the person who retaliated by an assault of the appropriate level and merely injured his assailant was entitled to be acquitted. If he went too far, the initial assault would still operate as a factor in mitigation. See Hume Vol. 1, pp. 334 - 335. Despite some subsequent criticism of his judgment (Crawford v. H. M. Advocate 1950 J.C. 67 at p. 70 per Lord Justice General Cooper), this is undoubtedly the doctrine which Lord Justice Clerk Aitchison had in mind when he held, in Hillan v. H. M. Advocate 1937 J.C. 53 at pp. 57 - 58, that provocation in the form of an assault could sometimes operate as a complete defence. The same approach is reflected in the original text of what is now to be found in Macdonald's Criminal Law, p. 116 where he states that "Provocation by blows will justify retaliation in self-defence if not excessive." If account is taken of the context, it requires no great application of thought to the textual criticism of the sentence to detect that the words which I have put in italics are not part of the original text. And, of course, they were not to be found, for instance, in the version cited by the Lord Justice Clerk in Hillan (1937 J.C. at pp. 57 - 58). They are in fact an interpolation by the editor of the (later) fifth edition. Moreover, with unfeigned respect to Sir Gerald Gordon (Criminal Law, p. 825), I detect in the relevant passage of Hume no "terminological error" on his part. On the contrary, it appears clear to me - not least from his references to punishment - that Hume was not confusing retaliation in response to provocation with self-defence. Rather, he was expounding a doctrine as to the operation and effect of the law of provocation which was regarded as valid in his day - and apparently as late as 1937 - but which has now fallen into disfavour. The reason for any change is, presumably, that it is nowadays thought that, with an organised police force throughout the land, an individual can never be justified in resorting to violence to deter and punish his assailant. Be that as it may, for present purposes it is useful to notice that, whether operating as a complete defence or as an excuse in mitigation, ex hypothesi in cases of assault provocation applied where the accused was intentionally attacking his assailant. That remains the position when it operates in mitigation today. [17] In his charge, the trial judge directed the jury that, if they found that the appellant killed the deceased as a result of provocation, they should convict him of culpable homicide. But he did not really explain why this should be so, given the definitions of murder and culpable homicide which he had already given them. He merely said that"if the accused would otherwise be guilty of murder but you take the view that he was acting under provocation, then that would reduce the crime from murder to culpable homicide and you would find him guilty of culpable homicide."
By saying that, if provocation were established, this would reduce the crime from murder to culpable homicide, the judge could be thought to give the impression that provocation acts as some kind of laissez-passer by virtue of which an accused, who displays the hallmarks of a murderer and would otherwise find himself convicted of murder, is entitled to escape from that predicament to the somewhat less serious predicament of a conviction of culpable homicide. While the terminology of "reducing murder to culpable homicide" is frequently encountered, it is essentially misleading, as Lord Cameron of Lochbroom observed in the course of the hearing of the appeal. In particular, it suggests that the jury would first conclude that, absent provocation, the accused would have been guilty of murder, and only at that stage would they consider provocation. 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.
[18] In this case, the question for the jury was whether the Crown had proved beyond a reasonable doubt that the appellant had acted with the necessary mens rea for murder. If so, the jury would convict him of murder. If not, they would convict him of culpable homicide. In reaching their conclusion the jury had, of course, to draw inferences from all the relevant evidence, including the appellant's evidence relating to provocation. In effect, that evidence was simply one of the factors - the principal factor, perhaps - upon which the defence invited the jury to infer that the appellant had not had either the wicked intention to kill the deceased or the necessary wickedly reckless indifference as to whether she lived or died, to justify a conviction of murder. Rather, taking all the relevant factors into account, they should conclude that his action, though culpable, was not wicked or, at least, that they had a reasonable doubt as to whether it was wicked: they should therefore convict him of culpable homicide. [19] This analysis, which fits provocation into the overall scheme of our law on murder and culpable homicide, is consistent with Hume's account of the relevant aspect of culpable homicide. In the introductory passage (Vol. 1, p. 239) which I have already quoted in paragraph 13, Hume observes that, where the accused kills in response to provocation, he is "not actuated by wickedness of heart, or hatred of the deceased, but by the impulse of resentment, excited by high and real injuries, and accompanied with terror and agitation of spirits." He goes on to expound his thinking in a passage (Vol. 1, pp. 239 - 240) which is of considerable importance for the issues in this appeal:"It is true, it could not well be maintained, that such a homicide shall be judged as a pure involuntary act, like that of a brute or a madman, the object of neither praise nor blame. For although, like other animals, we are subject to the feeling of resentment on injuries, which is necessary to our preservation; yet it is not in our species, as in theirs, a blind and an ungovernable impulse; but has been placed by the Author of our nature, under the control of a superior principle, which may serve to restrain it within those just and salutary bounds, where it answers its proper ends; and by means of which, if duly and habitually exerted, not only the conduct of the individual may be regulated, but even the feeling itself may in a great measure be chastened and subdued: So that the very things which he does in self-defence, shall be done calmly and with temperance, and less out of anger or revenge, than from considerations of justice and necessity. To gain this state of self-command is a part of every man's duty, according to the degree attainable in his way of education and course of life; and so far to fall short of it, as mortally to avenge any insult or injury not attended with danger to one's life, and not impossible to be repelled and chastised by gentler means, - this is certainly a criminal excess, such as ought to be the source of much distress to the survivor, and cannot be passed over by the magistrate without serious reprehension. A conclusion which will be the more confirmed, when he reflects on the great frequency of such scenes of provocation, and how strong the propensity to feel too keenly on occasion of all wrongs of this description. To put men therefore on their guard in this respect, and form them, as far as may be, to a previous habit and disposition on the subject, which may serve as a corrective of sudden passion, the law of most civilized countries has condemned all homicide that is done on provocation, though grievous and difficult to bear, as a high crime, and the fit subject of exemplary discipline.
But while we thus entertain a well-grounded jealousy of every man's partiality in his own case, and have a due regard to the peace and order of society, which are so deeply concerned in the repressing of such excesses; yet, on the other side, we cannot as men be insensible to the wide difference between that homicide which has no incentive but wickedness of heart, 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.
'Tis true, it may be argued, that in one point of view, there is more need of severity in the case of sudden than of wilful and malicious homicide; on account of the greater frequency of the inferior offence. But no more on this than on other occasions, can we, in judging of human conduct, put the feelings of human nature out of question on views of policy; or forget what the degree of perfection is, to which our constitution permits us to aspire. It is, indeed, a right and a necessary course, to keep the allowance for the frailties of our condition within as narrow bounds as may be; because by means of this wholesome discipline, men may improve and be corrected. But to have some consideration of those frailties, so as to punish them only in their degree as such, and not in the same rank with the foulest and most odious crimes, - this also is alike a just and a salutary rule; if the punishment is to have its due effect as an example, and the people are to be conciliated to the course of criminal justice; And here let me add, that in one point of view, those who argue for the reception of such a plea, are not, as at first it might seem, pleading purely on the side of mercy. For if the manslayer has in every case to make atonement with his life, without regard to the provocation, however high, which he has suffered; then may it be expected that juries will find a general verdict of not guilty, whensoever they cannot reconcile their conscience to such severity; and thus (as actually happened in Finhaven's case,) the offender shall be dismissed without even that punishment, which his intemperance deserves. Now, by acknowledging the inferior sort of homicide, the law saves indeed the manslayer's life, but still exposes him to some correction, proportioned to his fault, and maintains this great wrong in its due place in the public opinion as a crime.
All considerations issue, therefore, in one conclusion: The invader, who offered the injury, knowing as he did the resentment which it must excite, was therein guilty of a wrong; and he justly deserved to receive, upon the spot, a severe chastisement of his person. And although, on the other part, the due measure has been far exceeded, yet it were (I had almost said) no less excessive, to condemn this person to die for it; since he has not sinned out of cruelty or wickedness of heart, and is neither that object of aversion with his neighbours, nor the like irreclaimable felon, as the wilful murderer, on whom mercy would be thrown away. Punished he ought to be, that he may stand corrected, and others be taught the lesson of forbearance by the example; but it would not be right that he should seal his repentance with his blood, which in civilized times, neither the frequency of such incidents nor the public opinion will require."
"The defence of provocation is of this sort - 'Being agitated and excited, and alarmed by violence, I lost control over myself, and took life, when my presence of mind had left me, and without thought of what I was doing.'"
In particular, since the accused had ex hypothesi completely lost control over himself, his actions were those of someone who had no control. Since he had no control of his actings, he could not keep them within any particular bounds. It was therefore wrong to say that provocation was of no avail if the accused's act of retaliation was disproportionate to the provocation offered to him. The trial judge had misdirected the jury in this respect.
[23] In my view that particular argument against the introduction of a concept of proportionality falls to be rejected as being inconsistent with the approach which 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. On the contrary, in the passage which I have quoted from Hume in paragraph 19, he proceeds on the basis that, unlike the animals, men have the capacity to restrain their actings within due bounds. It could therefore not well be maintained, he says, that homicide under the influence of provocation was to be judged as a pure involuntary act (Vol. 1, p. 239). So, if a man overreacts to an assault, this is a criminal excess which requires punishment for a great wrong and high crime. One purpose of punishing such acts is to deter others by encouraging them to correct and control their sudden passions. While the law recognises that human nature is frail and men may in fact fail to master their passions, in principle they should - and their failure to do so is blameworthy. Hume's doctrine is inconsistent with any suggestion that men acting under provocation are in effect in a state of frenzy where their reason cannot operate. [24] Essentially the same argument was addressed to the Privy Council in Phillips v. The Queen [1969] 2 AC 130, an appeal from Jamaica. Giving their Lordships' advice and under reference to Section 3c of the Offences against the Person (Amendment) Law (Jamaica), No. 43 of 1958, Lord Diplock said this (at pp. 137 G - 138 B):"Before their Lordships, counsel for the appellant contended, not as a matter of construction but as one of logic, that once a reasonable man had lost his self-control his actions ceased to be those of a reasonable man and that accordingly he was no longer fully responsible in law for them whatever he did. This argument is based on the premise that loss of self-control is not a matter of degree but is absolute; there is no intermediate stage between icy detachment and going berserk. This premise, unless the argument is purely semantic, must be based upon human experience and is, in their Lordships' view, false. The average man reacts to provocation according to its degree with angry words, with a blow of the hand, possibly if the provocation is gross and there is a dangerous weapon to hand, with that weapon."
For the reasons discussed by their Lordships in R. v. Smith (Morgan) [2000] 3 WLR 654, in this context it may be preferable to think in terms of the ordinary man or woman rather than of the reasonable man. In particular, it requires a considerable effort of the imagination to envisage a reasonable man actually killing someone in circumstances where the law provides that he ought not to do so. See, for instance, the remarks of Lord Hoffmann ([2000] 3 W.L.R. at p. 677 H). In Scots law, unlike English law, there is no statutory wording to hinder us from framing any test in terms of the ordinary man or woman, if we think it appropriate. But, subject to that minor qualification of Lord Diplock's reasoning, Mr. Prais accepted that he had been correct to reject the argument that there is no intermediate stage between icy detachment and going berserk. I agree with Mr. Prais. Moreover, the views of their Lordships in the Privy Council, based on their view of human experience, are similar to those of Hume and reflect the approach which our law has always adopted to these matters. The passage in Macdonald's Criminal Law, p. 94 falls to be interpreted accordingly.
[25] 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 England until the law was changed by Section 3 of the Homicide Act 1957. The difference in scope of the doctrine of provocation in the two systems does not arise, it should be stressed, because Hume and the Scottish judges are unaware that people may react violently to minor physical provocations or to insults. Rather, as a matter of policy, the law has taken the view that in such cases the person assaulted or the person insulted should be expected to control himself, at least to the extent of not killing his tormentor. To this policy Scots law admits only one exception: the law recognises that when an accused discovers that his or her partner, who owes a duty of sexual fidelity, has been unfaithful, the accused may be swept with sudden and overwhelming indignation which may lead to a violent reaction resulting in death. In such cases the law provides that, where the jury are satisfied that this is in fact what happened, they should return a verdict of culpable homicide on the ground that, because of the effect of the provocation, the accused did not act with the wicked state of mind required for murder. [26] In Hume's time the plea of provocation applied only where the accused had actually discovered his wife and the other party in the act of committing adultery. But in Hill, the plea was admitted when his wife and her paramour had told the accused of their adultery. More recently, of course, the scope of the plea has been extended to relationships where fidelity can be expected, even though the parties are not married. Nevertheless, this type of case remains an exception to the general rule that provocation arises only where the deceased assaulted the accused in a substantial fashion. Hume quite expressly treated it as an exception, one which was indeed already well established and which might have been recognised as early as 1510. See Vol. 1, p. 245 n. 3. Describing the case of James Christie who was tried in the High Court in 1731, he says (Vol. 1, pp. 245 - 246):"This man had stabbed with a sword; but excused the deed on this ground, that he had found the deceased in the act of adultery with his wife, and sacrificed him to his resentment on the spot. This defence, the Court justly found relevant to restrict the libel to an arbitrary pain. Yet, as reasonable as this judgment is, what other view can be taken of such a case, than as a case of homicide on high provocation? And though the provocation is high, yet is it in some respects not so favourable as that of some other injuries; because 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, concur with his resentment, and materially strengthen his defence."
Similarly, a few pages further on, when he is contrasting the English and Scottish law, Hume says (Vol. 1, p. 248):
"In short, it is to be understood, that it is no excuse in our law, that the pannel is in rage and 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 exceeds 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."
The law, he says, should aim to curb and repress a jealous, choleric or quarrelsome humour, so far as this can be done without injustice in any particular case, and Scots law best achieves this
"when it has consideration of human infirmity in those difficult and agitating situations, which require a more than ordinary strength of mind, and command of temper to withstand them; not in those, where the pride more than the person of the man has been offended" (Vol. 1, p. 249).
"Now, on that, I have to tell you this, that factor - although neither counsel has alluded to it, but I feel it my duty to do it - that factor, if it arises, arises in answer to a charge of stabbing a man to death, and I have got to tell you that in law 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 the 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, and you would have to consider from that point of view whether there was anything in the evidence sufficient to raise in your minds even a reasonable doubt as to whether there was in this case provocation of such a kind as I have endeavoured to indicate. Remember the provocation that you would have to discover is not the provocation which might produce consequences in a pugnacious and an excitable man under the influence of a good many drinks; it has got to be such provocation as would induce an ordinary, reasonable man to act as this man did, and, unless you can find in the evidence as a whole sufficient to raise a reasonable doubt in your minds as to whether such provocation exists, you would not be justified in taking it into consideration as a means of reducing the offence from murder to culpable homicide."
I have already indicated that, in my view, the invocation of the concept of the reasonable man is not helpful in this context, but in substance Lord Cooper was telling the jury that, to be legally relevant, the provocation would have had to be such as to induce an ordinary man to act in the way in which the accused acted. To put the same point in another way, the jury could conclude that, in stabbing the deceased, the accused had acted with the wickedness of a murderer if they considered that an ordinary man would not have reacted to the provocation in the same way.
[34] If there is evidence of a relationship entitling the accused to expect sexual fidelity on the part of the deceased, the jury should be directed to consider two matters. First, they should consider whether, at the time when he killed the deceased, the accused had in fact lost his self-control as a result of the preceding provocation. If they conclude that he had not lost his self-control, then the plea of provocation must fail and the jury will have to consider, on the basis of all the rest of the evidence, whether the appropriate verdict is one of murder or culpable homicide. If, on the other hand, the jury come to the conclusion that he had indeed lost his self-control due to the provocation, then they should ask themselves whether an ordinary man, having been thus provoked, would have been liable to react as he did. The nature and degree of the violence perpetrated by the accused will, of course, be relevant to the jury's consideration of that issue. If they conclude that the accused's reaction was more extreme than was to be expected of the ordinary man, then again the plea of provocation will fail and the jury will have to consider, on the basis of all the rest of the evidence, whether the appropriate verdict is one of murder or culpable homicide. If, however, they conclude that the accused reacted in the way in which an ordinary man would have been liable to react in the same circumstances, or the evidence on provocation leaves them in reasonable doubt as to whether he acted wickedly, the jury will return a verdict of culpable homicide. [35] For the sake of completeness, I should add that in the course of the hearing we were referred to a number of cases of provocation by assault where this court has indicated that, for a plea of provocation to succeed, the accused's reaction in killing the deceased must not have been grossly disproportionate to the provocation. In the passage in his charge in Smith quoted above, Lord Cooper told the jury that "Provocation, in short, must bear a reasonable relation to the resentment which it excites." In Lennon v. H. M. Advocate 1991 S.C.C.R. 611 at p. 614 F Lord Justice General Hope said that "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." A somewhat similar approach was followed in a number of subsequent authorities which were reviewed by Lord Justice Clerk Ross, giving the opinion of the court, in Robertson v. H. M. Advocate 1994 J.C. 245. He concluded (at p. 249 G - H) that the trial judge had been correct to direct the jury that "there had to be a reasonable or reasonably proportionate - that is, not grossly disproportionate - relationship between the acts constituting the provocation and the appellant's reaction to them." This line of cases was obviously in the trial judge's mind when he gave the directions in the present case. 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. I refer to Phillips v. The Queen [1969] 2 A.C. per Lord Diplock at p. 138 C - D; R. v. Campbell [1997] 1 N.Z.L.R. 16 per Eichelbaum C.J. at p. 26, lines 10 -15; R. v. Rongonui [2000] 2 N.Z.L.R. per Elias C.J., at pp. 426 line 24 - 427 line 9, paragraphs 136 - 138. [36] For the foregoing reasons I am satisfied that the trial judge was wrong to direct the jury in this case that the plea of provocation could succeed only if the degree of violence used by the accused was not grossly disproportionate to the provocation to which he had been subject. The misdirection was material and I have reached the conclusion that there has been a miscarriage of justice, even though the jury must have been satisfied that the appellant acted with the wickedness of a murderer. The judge's directions may have led them to leave the evidence of provocation out of account in reaching that conclusion in circumstances where that evidence would have been relevant. I would therefore invite your Lordships to allow the appeal, set aside the verdict of the trial court, quash the conviction and grant the Crown authority to bring a new prosecution in accordance with Section 119 of the Criminal Procedure (Scotland) Act 1995.APPEAL COURT, HIGH COURT OF JUSTICIARY
|
Lord Justice General Lord Cameron of Lochbroom Lord Johnston Lord Nimmo Smith Lord Mackay of Drumadoon
|
Appeal No: C76/99 OPINION OF LORD CAMERON OF LOCHBROOM in APPEAL by STUART DRURY Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______ |
Appellant: Prais, Q.C., Hamilton; Anderson Strathern W.S.
Respondent: Doherty, Q.C., A.D.; Crown Agent
2 February 2001
[1] The appellant was convicted after trial of a charge of murder in that on 5 September 1998 at a house at 22 Gorebridge Street, Glasgow, occupied by the victim, Marilyn McKenna, he placed her in such a state of fear and alarm for her safety that she left the house, then chased after her and at Abbeyhill Street, Glasgow, assaulted her, repeatedly slapped her on the face and repeatedly struck her on the head and body with a hammer, whereby she was so severely injured that on the next day she died. [2] Before the jury the appellant did not seek to dispute that he had assaulted McKenna and that her death was caused by his criminal actings. Thus no question of accident nor, indeed, of self-defence was in issue at the trial. However, as appears from the trial judge's charge, the defence proceeded on two different lines, both of which were directed to the quality of the appellant's intent in assaulting McKenna and causing her death. The first was to the effect that the nature and manner of the attack itself was not such as to establish that it was carried out with either intent to kill or with that wicked recklessness necessary for a verdict of murder. The jury by their verdict clearly did not accept this line of defence and no point arises therefrom in this appeal. The second line of defence, and the point to which the appeal was directed, was that the appellant had been provoked into acting as he did by reason of the discovery of McKenna's infidelity. As a direct result of this he had lost control of his actions and in that state of mind had assaulted her as libelled. This line of defence was predicated upon the relationship between the parties. While they were not married, they had in the past lived together but had separated some months before. There was a factual dispute as to the nature of the relationship following the separation. However, the contention for the appellant before the jury, as it appears from the trial judge's charge, was that while it was a complicated relationship, including passion and arguments, the nature of it was such that the appellant, at the relevant time, "was justified in expecting [McKenna] to be faithful and that she had offered fidelity". The line of defence thus proceeded upon the basis that at best for the Crown all that had been established beyond reasonable doubt was that the appellant had been guilty of culpable homicide. The trial judge charged the jury on the basis that there was evidence before them to support the existence of what was termed in debate at appeal a bond of fidelity. [3] There is no doubt in our law that the jury is entitled to return a verdict of culpable homicide on provocation (Hume on Crimes 1.239). In this passage Hume said:"I now pass from those situations, where the homicide is in this sense accidental, that the killer could not well foresee any such fatal consequence of his act, to those, certainly more criminal cases, where he has a mortal purpose, and yet is not in the first degree of guilt as a murderer: Because he is not actuated by wickedness of heart, or hatred of the deceased, but by the sudden impulse of resentment, excited by high and real injuries, and accompanied with terror and agitation of spirits".
Hume explains the grounds for the distinction in a later passage as follows:
"...we cannot as men be insensible to the wide difference between that homicide which has no incentive but wickedness of heart, and that which is in retaliation only of grievous and alarming injuries suffered upon the spot, and thus has the double excuse of bodily smart, and perturbation of spirits."
Subsequently, Hume says (1.247):
"To have a good plea of extenuation, the pannel must have been , at the time of the killing, in the situation of an assaulted and a grossly injured person: one who was in a manner constrained to strike, by the violence he was suffering at the moment."
"In short, it is to be understood, that it is no excuse in our law, that the pannel is in rage and 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".
It is therefore the "peculiar" case which forms the ground for the appeal in this case, since it is not a case of passion excited by bodily suffering. Alison, in referring to this case, states (1.113) that our law "concedes so much to the just indignation of a husband, in such circumstances of extreme provocation, as to hold the taking of life on the moment culpable homicide only". As Lord Hunter pointed out in Thomson v. H.M.A. 1986 SLT 281, there has been quite a substantial development of the exception allowed by our law in cases of discovery of adultery. That that is so is apparent from the more recent authorities of McKay v. H.M.A. 1991 SCCR 364 and Rutherford v. H.M.A. 1997 SCCR 711. In the former case, Lord Justice General Hope, after a reference to a passage in Hume 1.246, continued:
"The explanation for the exception seems to lie in what Lord Patrick H.M.A. v. Hill at p. 62 described 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."
Later in his opinion, Lord Justice General Hope referred to "the common experience to-day that many people choose to live together and enter into lasting and faithful relationships without getting married". He continued:
"No doubt there may 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 from 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."
In the case of Rutherford your Lordship in the chair pointed out, under reference to H.M.A. v. Hill, that the exception also applies if, instead of actually finding his wife committing adultery, the husband is told by his wife that she has committed adultery and, by the same token, to the case where, though not married, the relationship was of such a character that fidelity, as in marriage, was expected on both sides.
[5] The exception therefore begins from the proposition that such a relationship existed between the parties. If that relationship did not exist at the time of the assault giving rise to death, then there can be no room, in my opinion, for the exception and, it follows, there can be no basis, other than the other circumstances of the attack, including its nature and the manner of the assault, from which the jury can determine whether the attack was a murderous one or not. In the case of husband and wife, proof of the relationship of marriage will hardly be disputed. Where the formalities of marriage have not been gone through by the parties, it will be a matter for the jury to determine upon the nature of the relationship from the evidence before it in any particular case. But, as pointed out in the case of H.M.A. v. Callander 1958 SLT 24, the existence of the relationship in itself is not enough if the infidelity, to which the accused has appealed as provocation, was known by the accused to be a background to the relationship. If the nature and extent of the infidelity were previously known to the accused, there could be no basis for provocation since then the assault could only have been deliberate and without any basis for sudden resentment (see the cases of Callander and Rutherford already referred to). This is consistent with what is said by Alison (1.113) that the provocation will not avail if the husband kill ex intervallo. [6] Thus an immediate and violent reaction by an accused, where there is discovery of sexual infidelity by him, which causes not merely injury, as in Callander, but death of the victim, may not have that "wickedness of heart", to use Hume's phrase, which is the necessary element for murder. Though the accused may have been possessed of what Hume calls "a mortal purpose" when so provoked, nonetheless, if the provocation is such that an ordinary person in those circumstances would become immediately, suddenly and overwhelmingly enraged and in the heat of that rage strike out violently so as to cause death, neither that purpose nor that violence is to be regarded as murderous. Equally, in similar circumstances, where the charge is attempted murder and the victim has been injured but not killed, a jury would be bound to return a verdict of guilty of assault to injury under provocation since the Crown would have failed to establish the mens rea necessary for murder (see Brady v. H.M.A. 1986 SCCR 191). The same rules must be followed in such case as in cases of homicide (Alison 1.165). But it must also be borne in mind that where death is brought about by an unlawful act, including an assault upon the victim, it is always homicide and it is always culpable. But because culpability can vary widely in degree, it is in sentence, as with lesser crimes committed under provocation, that the degree of culpability and all proper compassion in each case can be reflected (see McDermott v. H.M.A. 1973 JC 8). [7] In the course of the debate an attempt was made by counsel for the appellant to broaden the attack upon the trial judge's charge to the extent of encompassing the whole law as it applies with regard to provocation. This stemmed from a consideration of what had been said by Lord Justice Clerk Ross in Robertson v. H.M.A. 1994 JC 245 at p. 249, namely:"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."
Then after citing the passage from Hume 1.248 quoted above and a passage from Macdonald (5th ed.) at p.93, the Lord Justice Clerk continued:
"In recent years the court has repeatedly observed that there must be a 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 it has been made clear that the retaliation used by the accused must not be grossly disproportionate to the violence that 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 grossly disproportionate to the actions of the victim which constituted the provocation."
But what was said by the Lord Justice Clerk in this passage must be seen in the context of the case which was being considered by the court. The court was not concerned with a case such as the present. Indeed, it was expressly and, in my opinion, correctly conceded in Robertson both by counsel for the appellant and by the advocate depute for the Crown, that provocation in the case of a husband, who kills his wife or paramour after finding them in adultery, constituted an exception to the general rule that only provocation in the form of violence was relevant.
[8] In none of the cases cited to us nor in any other case concerned with this exception, so far as the researches of counsel could discover, leaving aside the charge in the present case, is any reference made to proportionality between the provoking conduct and the reaction which was said to have arisen from it. What judges appear to have been anxious to point out in these cases is that the reaction required to have that immediacy which indicated that the accused was acting "under the immediate impulse of his discovery", as Lord Guthrie put it in Callander. In that event, while what was done may have been done "on the principle of rage and revenge", as Hume says (1.246), it would not have that element of cold and deliberate calculation, that malice, which would constitute the wickedness of heart for murder. Of course, where the assault has occurred some time after the provoking conduct, the jury may reach the view that in the circumstances the reaction could not be said to be one of passion only or, as it might be said now, that it had not occurred in the heat of sudden and overwhelming indignation or in the "highly emotional state" to which your Lordship in the chair referred in the case of Rutherford. Rather, there had been time to cool down so that the criminal actings took on the colour of cold-blooded revenge. Thus Hume (1.252) excludes the defence of provocation in any case where, on the whole circumstances of the pannel's behaviour, he appears to have acted deliberately, and to have been the master of his emotions."If the husband catches the adulterer in the act, and kill him on the spot, he is excusable for this transport of passion on such an injury: But if he confine him till next day and then kill him, or if he force him to swallow a dose of poison, or castrate him, and the man die of the injury; in all these cases he has forfeited the privilege which might be allowed to human infirmity."
This passage makes clear the immediacy of the violent reaction which will serve to excuse the consequences of the passion invoked by the provocation. There would, of course, be no room for provocation if the jury were to be satisfied that, looking to the whole circumstances of the case, the accused appeared to have acted deliberately and to have been master of his emotions.
[9] Counsel for the appellant appeared at one stage in his submissions to argue that if it is now accepted that a confession of infidelity, that is to say words alone, may serve as provocation where the victim is killed, provocation of that sort should generally be available in cases of homicide. But, other than in relation to the exception, our criminal law has consistently rejected the proposition that words alone, unrelated to any other conduct involving force used against the accused, can serve as provocation for the purposes of reducing guilt to culpable homicide. I would content myself with allying myself with what was said by Lord Hunter, in the case of Thomson, in relation to provocation in the context of homicide and his comments, more particularly towards the end of his opinion, about leaving such questions to the jury in cases where the rigid application of principles derived from the institutional writers might be considered offensive to modern public opinion. But nothing in what he said in that case gives any countenance to the suggestion that where the case is not one of sexual infidelity, words alone can serve as provocation to palliate the guilt of an accused causing death by violence. On the contrary, he made clear that where the victim has used force, there must be some relation between that force and the violence of the retaliation. It is true that he observed that in cases which lie on or near the borderline it may, in some circumstances, be a not unreasonable course to leave the matter to the jury. But he went on to point out that the directions as to the ingredients of provocation which are in law sufficient to reduce guilt from that of murder to that of culpable homicide, can quite properly be given by reference to the general propositions set out in Macdonald (5th ed.) pp. 93-94, and these propositions exclude provocation by words alone. [10] It follows, in my opinion, that the rules of our criminal law with respect to provocation in homicide differ according to whether the provocation is said to arise from the victim's use of force or from discovery of sexual infidelity to which the victim has been party. In the latter case the jury are not concerned with making any judgment as to whether there was some reasonable proportionality between the infidelity and the violence used upon its discovery. I agree with counsel for the appellant that to look for this is not merely not a requirement of our law but would, in any event, involve an impossible balancing act on the jury's part. Rather, what the jury should be directed to consider is the evidence given, first of all, about the nature of the relationship from which the bond of fidelity is inferred, secondly, about the substance of the victim's conduct in the form of sexual infidelity which is said to have given rise to the accused's unlawful actions which resulted in death, and whether it would have led an ordinary person in such a relationship to act as the accused did, and, thirdly, whether those unlawful actions were linked to that conduct within a timescale which would indicate that they were carried out when the accused was not master of his emotions but had lost control of his presence of mind as a result of the sudden discovery of sexual infidelity. It may be that within the evidence a judge may, in a particular case, find nothing, for instance, to substantiate a relationship of the kind which is required for the exception to be applied to or the degree of immediacy of reaction necessary for provocation. If that be so, it remains the duty of the judge to direct the jury accordingly (see, for example, Thomson v. HMA supra: Parr v. HMA 1991 JC 39). [11] In the course of the debate before this court, little stress was laid upon any part of the trial judge's charge other than that in which, having addressed the jury generally on the matter of provocation arising when a person learns of another's infidelity, the trial judge told the jury that the fact that the accused was acting under provocation would have the effect of reducing the quality of the crime from murder to the lesser crime of culpable homicide. Subsequently he said this:"Now, you could find provocation established on the evidence of the Accused alone, if you accept it...Once the issue of provocation is raised by the Defence, as it has been in this case, it's for the Crown to satisfy you beyond reasonable doubt that the Accused has not acted under provocation. Further, and this is important, for the plea to succeed, the retaliation or violence used by the Accused must not have been grossly disproportionate to the provocation. Now, while you musn't judge the matter on too fine a scale, if the degree of violence used by the Accused was grossly disproportionate to the provocation to which he was subjected, then the plea of provocation cannot succeed."
Again, at a later point in his charge the trial judge, having told the jury that they must take into account all that had been said to them for the Crown and the defence on the issue of provocation, concluded by saying:
"You should also consider whether or not the degree of violence used by the Accused was or was not grossly disproportionate to the provocation. If it was grossly disproportionate, then the plea of provocation cannot succeed."
I recognise that the trial judge was not faced with an easy task in seeking to direct the jury on the law in relation to provocation in this case. However, I am in no doubt that in directing the jury that they would be bound to reject provocation on the ground that the degree of violence used by the accused was grossly disproportionate to the provocation, the trial judge erred and that, in the circumstances of this case, the misdirection was so material as to constitute a miscarriage of justice. For that reason, I agree that the appeal must succeed and that it be disposed of in the manner proposed by your Lordship in the chair.
APPEAL COURT, HIGH COURT OF JUSTICIARY
|
Lord Justice General Lord Cameron of Lochbroom Lord Johnston Lord Nimmo Smith Lord Mackay of Drumadoon
|
Appeal No: C76/99 OPINION OF LORD JOHNSTON in APPEAL AGAINST CONVICTION by STUART DRURY Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______ |
Appellant: Prais, Q.C., Hamilton; Anderson Strathern W.S.
Respondent: Doherty, Q.C., A.D.; Crown Agent
2 February 2001
[1] The appellant was convicted of murder in the High Court of Justiciary at Glasgow on 16 February 1999, the crime having been committed on 4 September 1998. The victim was a former cohabitee of the appellant. [2] It is apparent from the report of the trial judge, Lord Kirkwood, that there was a considerable number of discrepancies in the evidence and indeed various credibility issues arose as regards both the motive and conduct of the appellant. Taking the matter at its highest, however, for the purposes of this appeal in the interests of the appellant, it appears he had gone to the house of the victim on the date in question. He knocked on the door. There was no answer but he could hear people running about. A blond haired man came running out fixing his clothes. There was evidence that would, it was said, justify the appellant in reaching the view that the victim had been having sexual intercourse with the unnamed man. The reaction of the appellant, it would appear, was such that the deceased left the house. He thereafter chased after her and in the street at Abbeyhill Street, Glasgow he assaulted her by using a hammer, which he had in his possession, causing such injuries to her that she subsequently died. [3] Two issues went to the jury, firstly whether or not the nature of the attack by the appellant upon the deceased was such as to warrant an inference that it was murderous and secondly, assuming in general terms that to be so, whether the conviction should nevertheless be one of culpable homicide based upon provocation. In the absence of any suggestion of justification by way, for example, of self-defence or accident a conviction for the latter crime was inevitable since there was no dispute that the appellant killed the deceased in the manner specified. [4] The jury's verdict plainly reflects their acceptance of the first proposition and their rejection of the second. No appeal was taken to this court in relation to the first question and the issue turns solely upon the relevance, in the case, of the issue of provocation. [5] When the appeal was originally heard issues as to the general law of provocation were raised such as to cause the bench of then three judges to remit the case to this bench of five judges generally to consider the issue of provocation in the law of provocation in relation in particular to any distinction to be made between violent and sexual provocation. [6] The trial judge in his charge to the jury commences to deal with the issue of provocation on page 32 in the following terms:"The law of provocation is grounded in the law's recognition that a person who learns of another's infidelity may be swept by sudden and overwhelming indignation which may cause him to lose control and to react violently. The person loses control over himself and takes life when his presence of mind has left him and without thought of what he's doing. The killing must be done as an immediate reaction. If, having learned of the infidelity, the accused thinks about it and then, when calm, decides to kill, the law regards him as taking revenge and provocation would not apply. So for there to be provocation the Accused must have acted in hot blood when he was suffering from a temporary loss of control caused by provocation.
Now, you could find provocation established on the evidence of the Accused alone, if you accept it. His evidence does not require to be corroborated. As I've told you, there's no proof...no onus of proof on the Accused. Once the issue of provocation is raised by the Defence, as it has been in this case, it's for the Crown to satisfy you beyond reasonable doubt that the Accused had not acted under provocation. Further, and this is important, for the plea of provocation to succeed, the retaliation or violence used by the Accused must not have been grossly disproportionate to the provocation. Now, while you mustn't judge the matter on too fine a scale, if the degree of violence used by the Accused was grossly disproportionate to the provocation to which he was subjected, then the plea of provocation cannot succeed."
"You should also consider whether or not the degree of violence used by the accused was or was not grossly disproportionate to the provocation. If it was grossly disproportionate then the plea of provocation cannot succeed."
Mr. Prais, Q.C., who appeared for the appellant endeavoured to set out tests which he said should apply generally to the issue of provocation in a case where death was involved as a result of the assault in question. Essentially his position was that the law did not, or at least should not, recognise any question of proportionality as a matter of law in determining the question of provocation both in cases involving violence and also in cases involving "infidelity".
[8] He summarised his position as follows. Provocation in law, if established, deprives the homicide in question of the wickedness necessary to establish the crime of murder. For provocation in that sense to be established the accused must kill as an immediate reaction to the act which provokes in circumstances where he is no longer able to control himself. His reaction must satisfy the criterion of what could be expected of an ordinary man but that man had to be defined to include any relevant characteristics of the accused. The issue was whether, against that background, the accused had reasonably lost his self-control. If the issue of proportionality arose at all it might assist the jury in considering that question, but no more than that and it was certainly not to be regarded as a rule of law to be applied in every case, whether involving violence or otherwise. [9] In support of these submissions counsel ranged over a number of authorities both in textbooks and cases both in Scotland and England, though it has to be said that he had to be taken somewhat reluctantly by the court to what should be the proper starting point, namely Hume. As will become clearer, his reluctance to start from the point of view of Hume was based on a recognition, at least implicitly, that the substance of the writer's views was not supportive of the central position for which he contended. [10] So far as the law of Scotland is concerned he focused on the cases of Thomson v. H.M. Advocate 1986 S.L.T. 281 and Lowe v. H.M. Advocate 1993 S.C.C.R. 20 as laying the basis for what appears to have become recently established, as he submitted, in the law of Scotland, namely the issue of proportionality. It was this fundamentally, he submitted, that demonstrated that the law of Scotland as thus stated did not properly reflect the essential basis of the plea. [11] In relation to the law of England, where care has to be taken with regard to any case subsequent to the passing of the Homicide Act 1957, counsel focused on inter alia Lee Chun-Chuen v. The Queen [1963] A.C. 221; Philips v. The Queen [1969] 2 AC 130 and Reg v. Camplin [1978] AC 705. These cases, he submitted, supported the general position under the common law of England that while there had to be a relationship between the provoking act and the reaction, based on an objective viewpoint, it did not amount to a test of disproportionality, let alone gross disproportionality, as a matter of law. [12] In relation to his submission that, in applying the test of the ordinary man, he had to be imbued with the particular characteristics of the actual accused, counsel took us to the recent decision of Regina v. Smith (Morgan) [2000] 3 WLR 654 which he looked at in some detail. For my part I simply record the reference to this case for the reasons which I will give later. [13] Counsel went on to submit that in any event, even if there was scope for some form of test of proportionality in relation to a case involving a violent reaction to a violent provoking act, such could never be the case in relation to cases of so-called infidelity. He could find no case, and with this the Advocate Depute agreed, where the issue of proportionality had been applied in such a case. In the case of H.M. Advocate v. Hill 1941 JC 59 where a man shot his wife and her paramour upon receiving their confession of adultery, Lord Patrick directed the jury solely upon the issue as to whether or not they were satisfied that the accused had reacted in hot blood and not from a cold blooded motive of revenge. Hume, Vol. 1, at pages 240 to 248, recognised that the law of Scotland would admit provocation in relation to a hot blooded reaction to either the observation or discovery of adultery. If that element was satisfied Mr. Prais submitted that it followed that anything the accused did thereafter in furtherance of a hot blooded reaction to that discovery was relevant to the issue. Reference was made to Rutherford v. H.M. Advocate 1998 J.C. 34 although it would appear that that case focused more on whether there was a hot blooded reaction rather than any other element in the equation. [14] Against that background counsel submitted that the use of the words "grossly disproportionate" by the trial judge in his charge in the context of the present case where no violence had been offered to the appellant, the alleged provocation merely depending upon an apparent discovery of adultery with a cohabitee, amounted to a misdirection in law which went to the root of the conviction which could thus not stand. He somewhat faintly asked for a substitution of the verdict of culpable homicide, but at the end of the day he at least recognised that the inevitable result of success for him would be the quashing of the conviction and the opportunity for the Crown to seek a re-trial. [15] The Advocate Depute in reply adhered to the proposition that proportionality was a requirement in the equation to determine the relevance of the plea. The law attempted to balance justice with human frailty. The law expected people to conform to an objective test which involved adherence to self-control which again meant the imposing of an objective standard of behaviour, not in a fine balance, hence the use of the word "gross". He maintained that Hume, particularly at Volume 1 page 237 onwards, supported this position. He submitted it was a question of law to determine whether or not the ordinary man would have lost self-control in the circumstances. In the context of so-called infidelity cases he recognised that the plea was generally available in the context of relationships which might be beyond marriage, provided they created the necessary bond or duty of fidelity but again he maintained that in the moving scene of social mores it was relevant to consider whether a killing was not grossly proportionate from the nature of the provocation involved in this type of case. It was not acceptable, he maintained, just to establish a causal link between the actual consequence and the initial reaction to the provoking act. Thus, he submitted, the direction of the trial judge under reference to gross disproportionality reflected the law and was not thus a misdirection. [16] I have endeavoured only to summarise the arguments presented in order to focus the issues. [17] In my opinion the appropriate starting point is to consider the relevance of the plea of provocation in the context of a culpable killing, since obviously if the killing is not culpable whether by accident or by justification, the plea does not arise since it is not a defence but merely a mitigating factor going ultimately to sentence. Its importance in cases of killing is of course that if it successfully reduces murder to culpable homicide the mandatory sentence to be imposed for the former yields to the court's discretion which can then take in all the circumstances of the case. It also has to be borne in mind at all times that it is for the Crown to exclude provocation rather than for the defence to establish it. This strikes me as absolutely essential to a consideration of the basic proposition that applies in this context in cases of this type, that is to say culpable killing. [18] The task facing the Crown, in bringing a murder charge, is the establishment to the jury's satisfaction, i.e., beyond reasonable doubt, of a sufficient degree of wickedness either in the context of intentional killing or wicked recklessness from which the jury may reasonably infer that the accused cared not whether his victim lived or died. It is therefore in my opinion erroneous if not dangerous to assume that merely because there is an intent to kill in any particular case that will amount to murder if implemented. There are a number of cases where intent to kill would yield completely the opposite inference, for example, in relation to self-defence or, for that matter, in the case of Hill supra, where there was an obvious intention to kill yet the necessary murderous intent was lacking by reason of provocation. In approaching the question of murder therefore, in my opinion it is essential to attach to the phrase "intent to kill" some epithet such as "wicked" or "evil" to connote a state of mind sufficient to meet the test of murder. Against that background in my opinion the relevance of provocation is its effect of reducing the level of wickedness or evil intent below that required to establish murder, at least to the extent of raising an issue of reasonable doubt in that context in the mind of the jury. To my mind the passages in Hume, to which reference was made, make it entirely clear that the learned author is assessing circumstances where a hot blooded reaction which is understandable in the circumstances, involving anger or resentment, will reduce the level of criminal wickedness from that which otherwise might be said to apply. I use the word "understandable" because it is plain that in relation to a killing the provocation if not gross must at least be substantial. But that is because I agree with the notion that some form of objectivity must be applied in determining at the end of the day the extent of the wicked intentions of the accused. The standard to be applied is that of an ordinary man to determine whether such a person might lose his self control in his reaction to the provocation. The issue of objectivity to my mind arises as part of the equation since there must be a reasonable relationship between the provoking act and the reaction such that if the reaction exceeds what could be expected of an ordinary man as regards self control, the reaction would be regarded as unreasonable, such as to raise the level of criminality in the conduct. [19] Having set out the general position as I see it, given the circumstances of this case, I do not consider it appropriate to address in this case the issue of provocation induced by direct violence, which raises a number of complex issues which were not addressed in argument. [20] What, however, is the position in relation to cases of so-called infidelity? In the first place it is plain in this context that the jury must be satisfied upon evidence that there had been a relationship between the accused and the deceased such as would give rise to a bond of fidelity. In the modern context such may be beyond the confines of marriage and need not be confined to heterosexual relationships but there must be such a physical bond since the law of Scotland does not recognise provocation by words or insults save a possible exception in respect of a confession of adultery. Thereafter the jury will require to be directed that the circumstances which gave rise to the so-called provoked act would have entitled an ordinary man first of all to recognise a breach of the bond of fidelity and secondly, such recognition must have such a grave or dramatic effect as to entitle him to lose immediate self-control. The jury will therefore have to be satisfied that the reaction was hot blooded. I consider that this type of case completely removes the idea of proportionality from the issue because there is no way in which a non-violent provoking act can be measured against a violent reaction, but I maintain the view that it is still necessary for the jury to apply the test of the ordinary man to determine whether such a person would in the circumstances have lost his self-control. Thus I consider a test of objectivity applies. I therefore consider that the directions given by Lord Patrick in Hill are as relevant today as they were in 1941, with perhaps a rider of a reference to the action of an ordinary man. [21] It is clear from this analysis that I have not endeavoured to address the issue as to whether or not the ordinary man should be imbued with the particular characteristics of the accused in the particular case. This seems to me to raise very difficult questions in respect of which the case of Smith, given the variance of the speeches and indeed the narrow margin of the majority, raises a number of policy issues. I therefore reserve my opinion on this question since it is not raised in the present case there being no suggestion that the reaction of the appellant was to any extent attributable to a particular characteristic possessed by him, whether in relation to temperament or knowledge. [22] Finally, in my opinion the test of the ordinary man to be applied is essentially a question of fact for the jury to be based upon evidence and accordingly, applying the same tests as will be applied in relation to sufficiency of evidence, the trial judge should only withdraw the issue from the jury if there is no evidence in his opinion which would base the jury's consideration of the issue of objectivity. Thus one returns to the position that at the end of the day the jury require to be instructed on the whole issue of provocation that, if they are left in a reasonable doubt as to whether or not the Crown have excluded it, the accused must get the benefit of the doubt and the verdict is culpable homicide. [23] Turning to the present case I am therefore of the view that the reference by the trial judge in the various places in his charge to the phrase "grossly disproportionate", however understandable in the context of recent decisions, is a misdirection in the context of the present case. In any event I consider that the word "gross" distorts the whole issue of relationship and that in itself is sufficient to vitiate the direction, although it might be said to be favourable to the accused since it widens the latitude. [24] I have given consideration as to whether the misdirection as such, which thus gives rise by definition to a miscarriage of justice, requires that to be regarded as a material or substantial one. In my opinion such a conclusion cannot be avoided, given the fact that it goes to the nub of the plea which was being put forward. I therefore consider this conviction cannot stand. [25] I have given some further consideration as to whether or not a verdict of culpable homicide could be substituted. However, having regard to the whole circumstances in this case and not least the credibility issues that are involved there remains upon the evidence a real issue of murder and in these circumstances I consider that the only course open to this court is to grant the Crown's motion for a new trial. [26] In these circumstances I agree that the appeal should be disposed of in the manner proposed by your Lordship in the chair.APPEAL COURT, HIGH COURT OF JUSTICIARY
|
Lord Justice General Lord Cameron of Lochbroom Lord Johnston Lord Nimmo Smith Lord Mackay of Drumadoon
|
Appeal No: C76/99 OPINION OF LORD NIMMO SMITH in APPEAL by STUART DRURY Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______ |
Appellant: Prais, Q.C., Hamilton; Anderson Strathern W.S.
Respondent: Doherty, Q.C., A.D.; Crown Agent
2 February 2001
[1] Your Lordship in the chair has set out the circumstances in which this appeal against the appellant's conviction on a charge of murder has come before this court. I agree that, for the reasons given by your Lordship, the appeal should be allowed, the verdict of the trial court should be set aside, the conviction should be quashed and authority should be granted to the Crown to bring a new prosecution in accordance with section 119 of the 1995 Act. I think it appropriate to add only a few remarks of my own on the points of principle which are relevant to the appeal. [2] The trial judge directed the jury that murder"is constituted by any wilful act causing the destruction of life, either intending to kill or displaying such wicked recklessness as to imply a disposition depraved enough to be regardless of the consequences."
This definition follows, with unimportant variations, that given in the fifth edition of Macdonald's Criminal Law at p. 89, itself derived from earlier authorities. So far as I am aware, Macdonald's definition is invariably used in modern practice. But it is, on a proper analysis, incomplete. It is sufficient to exclude accidental killing. But it is not sufficient to exclude intentional but justified killing in self-defence. Nor is it sufficient to take account of killing which is intentional but where the accused is affected by diminished responsibility or provocation. So, while it may be adequate in some cases (such as those where the only disputed matter is the identification of the accused as the murderer), in those where the mens rea of the accused is put in issue the definition is incomplete and to that extent misleading. Of course, in many cases there may in any event be no evidence that the accused intended to kill the deceased, and the issue then is whether he displayed wicked recklessness such as to satisfy the second branch of Macdonald's definition. This was one of the issues in the present case. But where there is evidence of intention to kill, the first branch of the definition requires to be supplemented.
[3] To secure a conviction for murder, the Crown must, when the point is raised, displace, inter alia, any effect that provocation may have had on the mens rea of the accused. I should mention here (though I shall return to the point later) that the Advocate Depute submitted that provocation is a partial excuse, reducing what would otherwise be murder to culpable homicide. This does not seem to me to be correct. Unless, where it is put in issue, the Crown can succeed in excluding provocation as affecting the state of mind of the accused, the appropriate verdict is, at most, one of culpable homicide. It does not appear to me to accord with what I believe to be the correct analysis to describe provocation as mitigating or palliating what would otherwise be murder, with the effect of reducing it to culpable homicide. If, as a result of provocation (among other possible reasons), the accused does not have the mens rea for murder, he cannot be convicted of that crime. This is so even if he kills intentionally, because he lacks that "wickedness of heart" (in the phrase used by Hume in the passage from Vol. 1, p. 239 quoted by your Lordship in the chair) which is an essential feature of the crime of murder. So a complete definition of murder would include the words "whether wickedly intended to kill, or displaying...wicked recklessness...". [4] In the course of directing the jury on what constitutes culpable homicide, the trial judge said that it "applies where a person is assaulted and dies but the assailant did not intend to kill and did not display the required degree of wicked recklessness to constitute murder." While this accurately defines one category of culpable homicide, it is incomplete as a definition. No doubt no more need be said in cases where the victim has died as a result of an assault by the accused, but there is no evidence that the accused intended to kill, so that the issue is whether in carrying out the assault he displayed the required degree of wicked recklessness. This was one of the issues in the present case, so the direction, so far as it went, was appropriate. But there are also cases where the accused intended to kill the victim, but where, by reason of diminished responsibility or provocation, his mens rea was such that he should properly be convicted not of murder but of culpable homicide. In such a case further directions are required. [5] Provocation in our law is divided into two categories. The first is physical violence against the accused, which may result in the state of mind described in the passage in Macdonald at p. 94, approved in Cosgrove v. H.M. Advocate 1990 J.C. 333, in these terms:"Being agitated and excited, and alarmed by violence, I lost control over myself, and took life when my presence of mind had left me, and without thought of what I was doing."
It has long been recognised that the accused's response should not be disproportionate to the violence directed against him. This proposition has been given expression in various forms of words, and in a suitable case it might be thought appropriate to consider which formulation is correct. We heard some submissions about the appropriateness of the requirement of proportionality in this category, and about its correct formulation, but since these points do not arise in the circumstances of the present case, and without full argument, I do not think it appropriate to venture any opinion about them.
[6] The second category, however, does arise here. This is the class of cases in which the accused reacts to the discovery of sexual infidelity. Hume described this as "the peculiar case of a husband killing the adulterer caught in the act." (By "peculiar" he meant that such cases have a character exclusively their own and are sui generis.) The category has been extended in a number of twentieth century cases. In H.M. Advocate v. Hill 1941 JC 59, in which the accused intentionally shot dead his wife and another man, after they had admitted to him that they had committed adultery, the jury were directed that they might return a verdict of guilty of culpable homicide if, when he made that discovery, the accused then and there killed them "in the heat of sudden and overwhelming indignation". The category now extends to couples who have been cohabiting without being married, where the relationship has such a character that fidelity is expected on both sides: McKay v. H.M. Advocate 1991 JC 91, approving McDermott v. H.M. Advocate 1973 J.C. 8; see also H.M. Advocate v. McKean 1997 J.C. 32. It also now extends to sexual conduct which may be regarded as being akin to adultery: see, for example, H.M. Advocate v. Callander 1958 S.L.T. 24. In what may be regarded as a further extension of the law, it was held in Rutherford v. H.M. Advocate 1997 J.C. 34 that the deceased's giving of a fresh account of her infidelity (if such it was) to the accused, two days after first informing him of it, could in itself have caused a reaction of sudden and overwhelming indignation which was separate from any reaction to the original account. [7] What all these cases had in common was the concept of sudden and overwhelming indignation as a reaction to the discovery of sexual infidelity. There is no hint in any of the authorities, nor would it be consistent with this concept, that there should be proportionality between the infidelity and the reaction to its discovery. Once the circumstances are such as to amount to a discovery of infidelity, the law recognises that this may be sufficient to constitute provocation. I agree with your Lordship in the chair that the question is whether an ordinary man (as distinct from a reasonable man) would react to such provocation by resorting to violence. In a case where provocation of this type is put in issue, the jury should be directed to consider whether, on the evidence, the relationship was such as to give rise to a bond of sexual fidelity and whether the conduct discovered by the accused amounted to a breach of it. If so, they should then be directed to consider whether, at the time when he killed the deceased, the accused had lost his self-control by reason of his discovery of the infidelity, and whether, in the face of such provocation, an ordinary man would have been liable to lose his self-control and to react as he did. The nature and degree of the violence used by the accused would be relevant to the jury's consideration of the latter point. If, having considered these matters, and bearing in mind always that the burden of proof is on the Crown and that the accused is entitled to the benefit of any reasonable doubt, the jury were satisfied that the plea of provocation had not been made out, they should then consider whether on the evidence as a whole they were satisfied that in killing the deceased the accused acted with the degree of wickedness necessary for the crime of murder to be established. [8] The direction given by the trial judge, that if the degree of violence used by the accused was grossly disproportionate to the provocation to which he was subjected, then the plea of provocation could not succeed, is without precedent, at least in reported cases in this category. In my opinion, it must be regarded as a material misdirection. [9] Both counsel invited us in effect, if not in terms, to change the law, either by removing the requirement of proportionality, if that already formed part of the law relating to provocation by infidelity, or by introducing that requirement, if it did not. In fact there is no such requirement, as I have already indicated, so what needs to be considered is the Advocate Depute's invitation to us to introduce it. I do not regard such an exercise as being open to us. The law in its present form has been well-settled since the days of Hume, with the adaptations I have mentioned. 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 England statutory provision is made in this regard by section 3 of the Homicide Act 1957. This is by no means free from difficulty: see, for example, R. v. Smith (Morgan) [2000] 3 WLR 654. But it does have certain advantages. It recognises that grave insults may be no less provocative than relatively minor violence. Nor does it leave provocation by infidelity as an isolated category. While expressing no view about it, I recognise that a serious criticism that may be made of the law relating to this category is that, although of course a woman may kill while provoked, most often it is a man who is the killer and a woman who is the victim. So questions of public policy arise if there is to be reconsideration of the definition of this category of provocation, or of provocation in general. In my opinion any such reconsideration should be undertaken not by this court but by the legislature.APPEAL COURT, HIGH COURT OF JUSTICIARY
|
Lord Justice General Lord Cameron of Lochbroom Lord Johnston Lord Nimmo Smith Lord Mackay of Drumadoon
|
Appeal No: C76/99 OPINION OF LORD MACKAY OF DRUMADOON In APPEAL By STUART DRURY Appellant; Against HER MAJESTY'S ADVOCATE Respondent: _______ |
Appellant: Prais, Q.C., Hamilton; Anderson Strathern W.S.
Respondent: Doherty, Q.C., A.D.; Crown Agent
2 February 2001
[1] I agree with your Lordship in the chair that this appeal must be allowed. As your Lordship has explained, the trial judge's charge contained a material misdirection. That misdirection is to be found in two separate passages of the charge, in which the members of the jury were directed that the plea of provocation could not succeed, if the degree of violence used by the Appellant was grossly disproportionate to the provocation, to which he had been subjected. I also agree with your Lordship in the chair that this misdirection gave rise to a miscarriage of justice, which warrants the appeal being allowed, the verdict of murder being set aside and the conviction being quashed. Having regard to the evidence led and the issues of credibility, which arose at the trial in respect of that evidence, I am satisfied that authority should be granted to the Crown to bring a new prosecution, in accordance with the provisions of section 119 of the 1995. In my opinion, it would not be appropriate for this Court to substitute a verdict of culpable homicide. [2] As your Lordship in the chair has made clear, whilst the issue to be determined in this appeal may appear to be a narrow one, it has been necessary to consider wider aspects of the doctrine of provocation and, more generally, the definitions of the crimes of murder and culpable homicide. For my part, I would only wish to add a few observations to those already made by other members of the Court. I do so against the factual history of the case and the full discussion of the issues at the trial, which are to be found in your Lordship's Opinion. [3] 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. I would take such a view whether the proposals for change were designed to extend or designed to restrict, to any material extent, the range of factual circumstances to which the doctrine of provocation may be applied. Changes of that nature involve issues of considerable sensitivity. They are for politicians to decide upon, not judges. [4] On the other hand, it is not in the public interest that the law on provocation is open to any unnecessary or avoidable criticism. For that reason, it is important to recognise that this Court has a responsibility to ensure that the general principles, that form the foundations of our criminal law, continue to be defined and explained in terms which are understandable and relevant to the criminal proceedings in which they are applied. It may not always be easy to draw a clear dividing line between the roles the Court should eschew and those it can undertake. This appeal, however, illustrates the continuing importance of the particular responsibility, to which I refer, a responsibility I believe this Court must be astute to discharge. [5] From time to time, it is necessary for the Court to undertake a reassessment and, where appropriate, a reformulation of language that, over many years, has been used by judges, when charging juries. Such reassessment and reformulation are necessary not to change the law, but to render its general principles more intelligible to the members of a jury and to the public at large. Better understanding of the general principles, upon which our law depends, may also increase the extent to which these principles are accepted by society in general. The Court also has a continuing role in deciding how these general principles fall to be applied to factual situations, which are different in detail, but not in principle, from those which were before Hume and Alison, whose works continue to be central to a proper understanding of the general principles themselves. [6] If the responsibilities, to which I have referred, were not to be discharged by this Court, then there would be a risk that juries might fail to understand the directions they are being given. It is also possible that juries would disregard the directions they received. That could happen if the members of a jury were concerned that the legal principles, that they were being directed to apply, were not readily reconcilable with common sense and with the basic sense of fairness, which society expects the members of a jury to bring to their deliberations. Hume referred to similar considerations, when, at Vol. 1, p. 240, he stated:"For if the manslayer has in every case to make atonement with his life, without regard to the provocation, however high, which he has suffered; then it may be expected that juries will return a general verdict of not guilty, whensoever they cannot reconcile their conscience to such severity; and thus (as actually happened in Finhaven's case,) the offender shall be dismissed without even that punishment, which his intemperance deserves. Now, by acknowledging the inferior sort of homicide, the law saves indeed the manslayer's life, but still exposes him to some correction, proportionate to his fault, and maintains this great wrong in its due place in the public opinion as a crime."
(1) The accused must kill when and during the time that, as a result of the act which has provoked him, he is no longer able to control himself.
- The accused's reaction must satisfy the criterion of "the ordinary man test", meaning the ordinary man as defined to include the accused's characteristics. In other words, he must have reacted in a manner in which any ordinary man would have been liable to act.
Mr Prais stressed that if those two tests were met, the proportionality of the violence used towards the deceased to the provocation to which the accused had been exposed cannot be used as a basis for implying the wickedness requisite for murder.
[13] Helpful though the formulation of these tests was in promoting discussion during the hearing of this appeal, I have some reservations as to whether the tests would provide a complete solution to the problem of giving adequate and fully intelligible directions to a jury in a case of this nature. Invariably, cases in which the deceased is alleged to have acted in breach of a bond of fidelity arise out of unusual, if not unique, factual circumstances. For that reason, the application of Mr Prais' tests to all such cases, might be difficult, if not impossible. I, for my part, consider that it might be more helpful for the members of the jury were the trial judge to set out, in his own words, the general principles that apply, illustrating those principles, where appropriate, by identifying factual issues that have been raised in the evidence. [14] In any case in which the plea of provocation is taken, the jury would require to be informed that the plea is only available in cases in which the accused and the deceased had been in a relationship, which gave rise to a bond of sexual fidelity. Other essential elements of the doctrine would require to be explained. The deceased must have engaged in sexual conduct with a third party, which was capable of being viewed as, and was considered by the accused to amount to, a breach of that bond of fidelity. The accused must have lost his self-control and killed the deceased, before he regained control over his emotions and his actings. That loss of self-control must have occurred in the heat of the moment, upon the accused's discovery of the sexual conduct of the deceased. The loss of self-control must have been caused by the accused's discovery of the deceased's conduct. An ordinary man would have been liable to have reacted in the manner in which the accused did. [15] In addition, as I have already suggested, the trial judge might take the view that he should give the jurors guidance about the need for them to address individual factual issues, which had arisen during the trial. He might, for example, consider that the jury should be invited to give careful consideration as to whether the relationship between the accused and the deceased was such that either party believed that a bond of fidelity existed - in the sense, that so long as they remained married to each other or formed a couple, it was clearly understood between them that neither would engage in sexual relationships with others. Cases could arise in which it would be appropriate to inform the members of the jury that they could take the view that, even although the accused and the deceased were married or had lived together for some time, no such bond of fidelity existed. That particular factual issue might be critical, in a case like the present, where the accused and the deceased had ceased living together, some time before the deceased was killed. [16] In my opinion, the members of the jury ought to be directed that they are entitled to have regard to all the evidence they have heard as to the nature of the relationship between the accused and the deceased, the history of that relationship, whether it was continuing or had ceased, the circumstances in which the accused came to discover the alleged infidelity, how the accused had reacted to that information and the nature of the violence used by the accused. During the hearing there was some discussion as to whether the jury should also be able to take account of any special characteristics that the accused may have. This particular issue raised difficult questions, which were not fully debated before us. In the present case, it was not claimed that the accused has any such special characteristics, which the jury ought to have been directed to take into account, when considering the issue of provocation. In these circumstances, I agree that the correct course for this Court to follow is to reserve that issue, until it arises in a case in which the accused seeks to rely on his having special characteristics that one would not expect to find in the ordinary man. [17] In conclusion, I reiterate two points. It is, I believe, important that the jury be directed that the plea of provocation does not succeed automatically, in every case in which an accused kills his/her partner, following upon the accused becoming aware of the partner's involvement in a sexual relationship with a third party. Linked to that is the equally important direction that if the members of the jury conclude that the accused's actings, in killing the deceased, had been more extreme than those to be expected of an ordinary man, faced with the situation the accused had faced, then the jury would be bound to discard the issue of provocation as a possible basis for convicting of culpable homicide rather than murder.