"(5) on 13 January 1998, in a lane between 36 and 38 Balbardie Crescent, Bathgate, you did assault Gary George Allan Johnstone, aged 25 years, 77 Balbardie Avenue, Bathgate and strike him repeatedly on the head, face and body with a spade and you did murder him and you did previously evince malice and ill-will towards him."

The appellant also pled guilty to three other charges on the indictment: charge (1) a contravention of section 4(3)(b) of the Misuse of Drugs Act 1971; charge (3), a contravention of section 5(2) of the Misuse of Drugs Act 1971; and charge (4) a contravention of section 47(1) of the Criminal Law (Consolidation) (Scotland) Act 1995. On the same date, the trial judge sentenced the appellant to life imprisonment, that sentence to run from 13 January 1998. On 7 October 2002, a punishment part of 14 years was fixed under section 2(2) of the Prisoners and Criminal Proceedings (Scotland) Act 1993, as amended.

"(1) There has been a miscarriage of justice in respect that-

(a) the learned trial judge misdirected the jury at page 11, lines 21-24 of his charge in that he gave inadequate and incomplete directions as to the mens rea required for the crime of assault by failing to direct the jury that evil intent is of the essence of the crime.

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

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

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

(1) In regard to provocation by violence generally, is there a rule of law requiring a reasonably proportionate relationship between the provocative conduct and the reaction of the accused?

(2) If not, by what standard should the conduct of the accused be considered?

Submission on behalf of the appellant

Submissions on behalf of the Crown

Decision

The existing law

"A minor assault of that kind, whether or not one also takes into account the history of the business dealings, is clearly insufficient to found a plea of provocation which would palliate the taking of the deceased's life by stabbing. Where the victim has used force, there must be some relation between that force and the violence of the retaliation. In H.M. Advocate v Smith (unreported on this point but referred to in Gordon, supra, page 772), the Lord Justice General told the jury:

'It takes a tremendous amount of provocation to palliate stabbing a man to death. Words, however abusive or insulting are of no avail. A blow with a fist is no justification for the use of a lethal weapon. Provocation, in short, must bear a reasonable relation to the resentment which it excites ...'."

In Parr v H.M. Advocate, at page 187, Lord Justice General Hope expressed similar views:

"What we are left [with] in this case therefore is simply a gross disproportion between the blows struck when the appellant lost control of himself that night and what his mother did immediately beforehand. In these circumstances it is plain that the jury were not entitled to consider the question of provocation, so there was, in my opinion, no misdirection in this regard by the trial judge."

Again, in Lennon v H.M. Advocate, at page 614, Lord Justice General Hope discussed the plea of provocation both in the context of the crime of assault and in the context of homicide. He said this:

"The plea of provocation is of no significance unless it mitigates everything that the accused has done to inflict injury upon his victim. This can be seen clearly where the retaliation has resulted in an act of homicide, because the sentence which the accused will receive on conviction will always be related to the ultimate act of killing which defines the nature of his crime. It is immaterial, if the conviction is one of murder, that the incident began with some minor acts of violence to which the plea of provocation would have applied if the accused had desisted at that stage. The sentence will be one of life imprisonment whatever view might be taken of the initial acts if the accused had not carried the matter to excess. Similarly, if the victim lived and the crime is one of assault only and not homicide, the gravity of the crime is measured by the most serious injury or the most sustained violence which is inflicted on the victim, and if these acts cannot be mitigated because they go beyond what was a reasonable response, the accused will be sentenced accordingly and the plea of provocation cannot succeed. In short, the sole purpose of the plea is to reduce the quality of the act from the crime of murder to one of culpable homicide, or to mitigate sentence in cases of assault; and in either case cruel excess, or a gross disproportion between the provocation offered and the retaliation by the accused, will bar the plea because in that situation it can be of no effect."

However, in Low v H.M. Advocate, at page 507, Lord Justice Clerk Ross commented upon the language of Lord Justice General Hope in Lennon v H.M. Advocate, just quoted. At page 507 he said this:

"We confess to being unhappy with the use of the expression 'cruel excess' in relation to provocation. These words are, of course, often used with regard to self-defence. For many years there was confusion between self-defence and provocation, but the importance of distinguishing between them has for some time now been recognised (Crawford v H.M. Advocate; Fenning v H.M. Advocate). The phrase 'cruel excess' does not appear to us to be entirely appropriate for the plea of provocation. Provocation involves loss of control and, where there has been loss of control, there may well be retaliation which is at least to some extent excessive. For that reason we prefer the alternative words used by the Lord Justice General in Lennon v H.M. Advocate - 'a gross disproportion'. It is well established that where a plea of provocation is taken, there must be some equivalence between the retaliation and the provocation so that the violence used by the accused is not grossly disproportionate to the evidence constituting the provocation. Accordingly, we feel that the words 'cruel excess' should be confined to cases of self-defence. However, whatever language is used to describe the limitation to the plea of provocation, it must always be a question of circumstances and a question of degree."

In McCormack v H.M. Advocate, at page 588, Lord Justice General Hope once again considered the criterion for a plea of provocation. He said:

"In any event, the direction that there must be a reasonable or reasonably proportionate relationship between the conduct amounting to provocation and the act or reaction to it was sufficient to inform the jury that the question was one of degree. There was no indication here that there had to be a precise equivalence between the one and the other or that a fine balance was required. The effect of the direction was simply to warn the jury that they could not hold that the accused was acting under provocation where there was an absence of any proper or reasonable relationship between the provocation offered and the response to it. As the Lord Justice Clerk said in Low v H.M. Advocate, whatever language is used to describe the limitation to the plea of provocation, it must always be a question of circumstances and a question of degree."

Finally, in Robertson v H.M. Advocate, at page 593, Lord Justice Clerk Ross stated:

"It is by now well established that loss of control is not the only element in provocation. Although provocation does involve the loss of control, there must be a reasonably proportionate relationship between the violent conduct offered by the victim and the reaction of the accused. That has been well recognised from the time of Hume [volume i at page 248].

'In short, it is to be understood, that it is no excuse in our law, that the pannel is in a rage and the heat of blood, though excited by some rude or contemptuous freedom taken with his person: This passion must be occasioned by some adequate and serious cause, some severe and continued assault, such as is attended with trepidation and a dread of further harm, as well as with present smart and pain of body; so that the sufferer is excusable for the loss of his presence of mind, and excess of the just measure of retaliation. Excepting the peculiar case of a husband killing the adulterer caught in the fact, there seems to be no instance of culpable homicide in our record, which is not less or more of this description; not a case of passion only, but of passion excited by bodily suffering and mingled with terror and perturbation of spirits' ...

In recent years the Court has repeatedly observed that there must be such a reasonable or proportionate relationship between the conduct amounting to the provocation and the act of the accused (Lennon v H.M. Advocate; Low v H.M. Advocate; and McCormack v H.M. Advocate). In these cases the principle has been expressed in different ways but is has been made clear that the retaliation used by the accused must not be grossly disproportionate to the violence which has constituted the provocation. To desiderate a proportionate relationship between the conduct amounting to the provocation and the actings of the accused is essentially the same as stipulating that the violence used by the accused is not disproportionate to the actions of the victim which constituted the provocation."

Having traced these more recent formulations of the requirements for a plea of provocation in the context of violence, we conclude that there is no doubt that there is a rule of law as expounded particularly by Lord Justice Clerk Ross in Robertson v H.M. Advocate. It is to be noted that the Lord Justice Clerk considered the proportionality test to have been "well recognised from the time of Hume". And before us, senior counsel for the appellant did not challenge the Advocate depute's submissions to a similar effect, made under reference not only to Hume but also to inter alios Burnett and Anderson.

Reasons advanced for change of the present law

"I shall return to examine Hume's reasoning in more detail but, for present purposes, I simply draw attention to the wide difference which he sees 'between that homicide which has no incentive but wickedness of heart' (murder) and 'that which is in retaliation only of grievous and alarming injuries suffered upon the spot, and has thus the double excuse of bodily smart, and perturbation of spirits' (culpable homicide). Hume employs the same analysis when he says that it would be excessive to prescribe the death penalty for a person who kills under provocation 'since he has not sinned out of cruelty or wickedness of heart'. In other words, Hume sees the pain and the perturbation of spirits experienced by the person who has been assaulted as prompting his action in killing his assailant. Because of these factors, even if he intentionally kills his assailant, his state of mind is not of the same wicked character as that of a murderer. He has, of course, acted wrongly and deserves to be punished, but in a manner which reflects both his lack of wickedness and the actual degree of his wrongdoing in the circumstances. In my view, for the reasons which I have already given, in its essentials Hume's analysis remains valid for our law today: the person who kills under provocation is to be convicted of culpable homicide rather than of murder because, even if he intentionally kills his victim, he does not have that wicked intention which is required for murder."

While the Lord Justice General's analysis undoubtedly involved a departure from the more traditional formulations of the nature of provocation, we have no reason to disagree with his approach to the underlying mens rea involved in murder and culpable homicide, as it relates to a plea of provocation.

"In my view that particular argument against the introduction of a concept of proportionality falls to be rejected as being inconsistent with the approach our law takes to provocation. It really amounts to saying that a person who has been provoked has no control whatever - is in effect in a state of frenzy or temporary insanity. But if that were indeed how our law understood the situation, then provocation should lead to acquittal on the ground of temporary insanity. Needless to say provocation has never been understood to have this effect."

In that connection he derived support from what was said by Lord Diplock in Phillips v The Queen [1969] 2 A.C. 130, at pp. 137 to 138.

"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."

"In other systems, where matters are regulated by statute, these questions have been hotly debated and they have recently divided the Privy Council, the New Zealand Court of Appeal and the House of Lords."

"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."

"First, the provocation had to be such as to temporarily deprive the person provoked of the power of self-control, as a result of which he committed the unlawful act which caused death. Secondly, the provocation had to be such as would have made a reasonable man act in the same way. These two requirements are commonly called the subjective and objective elements of the defence respectively. In R. v Duffy (Note) [1949] 1 All.E.R. 932 the gist of the defence was encapsulated by Devlin J. in a single sentence in his summing up, which was afterwards treated as a classic direction to the jury:

'Provocation is some act, or series of acts, done by the dead man to the accused, which would cause in any reasonable person, and actually causes in the accused, a sudden and temporary loss of self-control, rendering the accused so subject to passion as to make him or her for the moment not master of his mind.'

Two decisions of the House of Lords subsequent to Mancini added glosses to these principles. First, in Holmes v Director of Public Prosecutions [1946] A.C. 588 it was decided that mere words could not constitute provocation, whatever their effect on the reasonable man might have been. Secondly, in Bedder v Director of Public Prosecutions [1954] 1 W.L.R. 1119 it was decided that the 'reasonable man' was a wholly impersonal fiction, to which no special characteristic of the accused should be attributed. The alleged provocation there was that the victim, a prostitute, had taunted the accused for his impotence. The accused was in fact impotent but the House held that the jury had properly been directed to consider whether a reasonable man who was not impotent would have reacted in the same way."

"Where on a charge of murder there is evidence on which the jury can find that the person charged was provoked (whether by things done or by things said or by both together) to lose self-control, the question whether the provocation was enough to make a reasonable man do as he did shall be left to be determined by the jury; and in determining that question the jury shall take into account everything both done and said according to the effect which, in their opinion, it would have on a reasonable man."

"In expressing their conclusion above their Lordships are not to be taken as accepting that the present state of the law is satisfactory. It is not. The widely held view is that the law relating to provocation is flawed to an extent beyond reform by the courts: see the Law Commission Report on Partial Defences to Murder (Law Com No 290) (2004) (Cm 6301), para 2.10. Their Lordships share this view. But the law of provocation cannot be reformulated in isolation from a review of the law of homicide as a whole. In October 2004 the Home Secretary announced the Government's intention to review the law of murder. Given the importance of this area of the criminal law it is imperative that a review, of all aspects of the law of murder, should be undertaken as soon as possible."

"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). 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 a reconsideration of the definition of this category or provocation, or of provocation in general. In my opinion such reconsideration should be undertaken not by this court but by the legislature."

Lord Mackay of Drumadoon, in paragraph 3 of his opinion said:

"In the first place, I agree with Lord Nimmo Smith that if there is to be any major reconsideration of the doctrine of provocation, as it applies to charges of murder, then such reconsideration requires to be undertaken by the Scottish Parliament and not by this court ... Changes of that nature involve issues of considerable sensitivity. They are for politicians to decide upon, not judges."

We are in agreement with these expressions of opinion.