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Cite as: [2005] ScotHC HCJAC_111, [2005] HCJAC 111

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Gillon v. Her Majesty's Advocate [2005] ScotHC HCJAC_111 (29 September 2005)

APPEAL COURT, HIGH COURT OF JUSTICIARY

Lord Justice General

Lady Cosgrove

Lord Emslie

[2005HCJAC111]

Appeal No: XC924/04

OPINION OF THE COURT

delivered by THE LORD JUSTICE GENERAL

APPEAL AGAINST CONVICTION

ANDREW GILLON

Appellant;

against

HER MAJESTY'S ADVOCATE

Respondent:

_______

Appellant: Jackson, Q.C.; Milligan Telford & Morrow, Falkirk

Respondent: McConnachie, Q.C., A.D.; Crown Agent

29 September 2005

[1] The appellant has appealed against his conviction on 15 May 1998 of a charge of murder.

[2] According to the terms of the charge he struck the victim repeatedly on the head, face and body with a spade. At his trial the appellant gave evidence to the effect that the victim had chased him and attempted to strike him with the spade. They grappled for it, and the appellant managed to get hold of it and thereafter attempted to strike the victim with it. He said that he remembered no more of what happened, and in particular did not remember striking the victim with the spade while he was on the ground. The defence sought a verdict of culpable homicide rather than murder on the ground of provocation. When he came to deliver his charge to the jury the trial judge gave them the following directions in regard to provocation:

"Now, there are three requirements here for provocation to reduce what would otherwise be murder to culpable homicide. The first is that the accused's act, is what he was provoked to do, that he reacted or retaliated in the heat of the moment when through fear or agitation he had lost control of his actions. It has been put this way: 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 ... So that is the first ingredient. The second is that the provocation must be recent, that is that the reaction must be immediate to the provocative conduct of the person who is attacked. The third is that there must be a reasonable relationship between the provocation and the accused's act. Now, this principle is illustrated in regard to circumstances which are different to those here, but they demonstrate the point. It has been positively said 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 retaliation (sic) to the resentment which it excites".

[3] It is not in doubt that these directions, and in particular in regard to the third requirement, were in accordance with the law relating to provocation as it was then understood. In Robertson v H M Advocate 1994 S.C.C.R. 589 Lord Justice Clerk Ross stated at page 593F:

"It is by now well established that loss of control is not the only element in provocation. Although provocation does involve the loss of control, there must be a reasonably proportionate relationship between the violent conduct offered by the victim and the reaction of the accused".

[4] In this appeal it is maintained that the trial judge misdirected the jury in respect that he should have directed them that evidence relating to provocation, and proportionality between provocation and retaliation in particular, were simply factors which the jury should take into account in performing their general task of determining whether the appellant had a wicked intent to kill or was wickedly reckless as to the consequences at the time when he killed the victim.

[5] On behalf of the appellant Mr Jackson referred at the outset to the analysis of the relationship of provocation to intentional killing in the opinion of Lord Justice General Rodger in Drury v H M Advocate 2001 SCCR 583. At paragraphs 17 and 18 the Lord Justice General stated that evidence relating to provocation was simply one of the factors which the jury should take into account in performing their general task of determining the accused's state of mind at the time when he killed the victim, and deciding whether his action, though culpable, was not wicked or, at least, that they had a reasonable doubt as to whether it was wicked, and therefore they should convict him of culpable homicide. To refer to provocation as reducing murder to culpable homicide was essentially misleading, in respect that it suggested that the jury would first conclude that, in the absence of provocation the accused would have been guilty of murder, and only at that stage would they consider provocation.

[6] Drury was an example of the type of case in which the accused claimed that he had reacted to the discovery of sexual infidelity. In paragraph 25 the Lord Justice General pointed out that Scots law admitted that type of case as an exception to the general rule that provocation applied only where the accused had been substantially assaulted. In paragraph 28 he said that it was wrong for the trial judge in such a case to direct the jury that they had to consider whether the degree of violence used by the accused was or was not grossly disproportionate to the provocation, when they were actually incommensurable. He expressed the correct approach as follows in paragraph 32:

"Where, therefore, the accused has reacted to provocation in a way in which no ordinary man or woman would have been liable to react, a jury can rightly conclude that he acted with that wickedness which justifies a conviction for murder".

At the same time he pointed out in paragraph 34 that the nature and degree of the violence perpetrated by the accused would be relevant to the jury's consideration of that issue.

[7] Mr Jackson pointed out that in Drury the court had been invited to consider whether, in regard to provocation generally, there was no rule of law that there required to be a reasonably proportionate relationship between the provocative conduct and the reaction of the accused. However, the court had not dealt with that question, since they had distinguished Drury from the type of case in which the provocation took the form of an assault. In paragraph 35 the Lord Justice General said that he expressed no view on the general question, except to notice that, even in England and New Zealand, where there was no requirement that, as a matter of law the response should be proportionate to the provocation, the nature and degree of the accused's response were nonetheless aspects of the evidence to which the jury could have regard when deciding whether the accused reacted in the way in which an ordinary man would have been liable to react. Only Lord Cameron of Lochbroom suggested positively that there was a difference in the rules of the criminal law, according to whether the provocation was said to arise from the victim's use of force or from discovery of sexual infidelity. The other members of the court reserved their opinion on that matter.

[8] Mr Jackson accepted that if the law relating to provocation which took the form of an assault was as stated in Robertson, the appeal could not succeed. However, he maintained that there was no logical reason why the approach taken by the Lord Justice General in Drury in regard to the relationship between provocation and murder should not be applicable in cases in which the provocation took the form of assault. This involved a single test in determining whether it was proved that the accused had acted with the mens rea for murder. Accordingly, it would be open to the jury to conclude that an accused had acted with the wickedness which justified a conviction for murder where he had reacted to such provocation in a way in which no ordinary man or woman would have been liable to react. He sought the opportunity to make these submissions before a court of five judges which would be able to review the soundness of decisions such as Robertson.
[9] We are satisfied that, in the light of the analysis of the relationship between provocation and murder in the opinion of the Lord Justice General in Drury, there is an issue as to whether it is a rule of law that for provocation by assault to lead to a conviction of culpable homicide there requires to be a reasonably proportionate relationship between the violence offered by the victim and the reaction of the accused, and that this question should be resolved by a court of five judges.

[10] This appeal will be put out for a procedural hearing before three judges, at which parties will be expected to indicate their views as to the appropriate formulation of the question or questions to be submitted to the court of five judges, and to discuss arrangements for written submissions and the time which should be allocated for the hearing of the appeal.