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You are here: BAILII >> Databases >> Scottish High Court of Justiciary Decisons >> Gillon v. Her Majesty's Advocate [2006] ScotHC HCJAC_61 (17 August 2006)
URL: http://www.bailii.org/scot/cases/ScotHC/2006/HCJAC_61.html
Cite as: [2006] HCJAC 61, 2007 JC 24, 2006 SLT 799, [2006] ScotHC HCJAC_61, 2006 SCCR 561, 2006 GWD 27-601

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JISCBAILII_CASE_CRIME_SCOTLAND

Gillon v. Her Majesty's Advocate [2006] ScotHC HCJAC_61 (17 August 2006)

APPEAL COURT, HIGH COURT OF JUSTICIARY

 

Lord Osborne

Lord Abernethy

Lord Johnston

Lord Philip

Lord Kingarth

 

 

 

 

 

 

[2006] HCJAC 61

Appeal No: XC924/04

 

OPINION OF THE COURT

 

delivered by LORD OSBORNE

 

in

 

NOTE OF APPEAL AGAINST

CONVICTION

 

by

 

ANDREW URQUHART BLACK GILLON

Appellant;

 

against

 

HER MAJESTY'S ADVOCATE

Respondent:

 

_______

 

 

 

Act: Jackson, Q.C., J. Barr; Milligan Telford & Morrow, Falkirk

Alt: J. Beckett, Q.C. A.D.; Crown Agent

 

17 August 2006

The background circumstances

[1] On 15 May 1998, at the High Court at Edinburgh, the appellant was found guilty by a majority verdict on the following charge:

"(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.

[2] The circumstances of the offence to which charge (5) related, as narrated in the trial judge's report, were as follows. The appellant, who was born on 27 January 1968, killed his victim in a lane in a housing estate in Bathgate early in the morning concerned, having been out drinking with him and others in bars in Bathgate the previous evening. It was accepted on behalf of the appellant from the outset of the trial that he had assaulted and killed Gary George Allan Johnstone; the only issue in relation to the charge of murder was whether the appropriate conviction would be one of murder or of culpable homicide. Death was caused by horrendous injuries to the head of the victim inflicted with a spade while he was on the ground; apart from the blow which felled him and caused him to be on the ground. The blows were described in evidence by a pathologist as being of a targeted nature, in that they were delivered to the top of the head, indicative of deliberate targeting of blows with the spade, delivered with maximum force. The only ground upon which a verdict of culpable homicide, rather than murder, was sought was that the killing was carried out under provocation. Evidence of provocation came only from the appellant himself, who gave evidence to the effect that Gary George Allan Johnstone had attempted to strike him with the spade and the two of them had then grappled for it; the appellant had managed to get hold of it and had thereafter attempted to strike the now deceased with the spade. The appellant said in evidence that he remembered no more of what had happened and, in particular, did not remember striking his victim with the spade while he was on the ground. The Crown led evidence to suggest that the appellant had earlier suspected his victim of having caused him to be reported to the police with regard to the events which gave rise to charge (1) in the indictment. That charge arose from a car being stopped in Inverness and the passenger in the car, the appellant, being found in possession of £4,900 worth of cannabis resin in a rucksack, namely 984 grams, and a small quantity of amphetamine. Evidence was also led that the appellant's threats against Gary George Allan Johnstone included the sending to him of Christmas cards suggesting that the forthcoming New Year would be his last. There was also evidence that subsequently the appellant had discovered that Gary George Allan Johnstone had not been responsible for reporting him to the police. Accordingly, the significance or lack of significance of this aspect of the matter in the attack on the night concerned was not clear. In pleading guilty to the offences involved in charges (1) and (3) in particular, it was accepted that the appellant himself had been a drug user for many years. Despite what had been said in the social enquiry report available to the trial judge, there was no evidence at the trial that Gary George Allan Johnstone had been involved with controlled drugs. So far as the evidence at the trial was concerned, the appellant's motive for what he had done was not clearly established. There was some evidence that the appellant owed Gary George Allan Johnstone £2,100, but the evidence about that was not clear.

[3] On 14 February 2005, the appellant lodged a note of appeal against conviction containing a number of grounds. These were in the following terms:

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

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

(b) The learned trial judge misdirected the jury at page 12, lines 5-21, and page 15, lines 12-17, of his charge in that he gave inadequate and incomplete directions as to the mens rea required for the crime of murder by failing to direct the jury that a wicked intention to kill or wicked recklessness as to the consequences is of the essence of the crime (Drury v H.M. Advocate 2001 SCCR 583).

(c) The learned trial judge directed the jury at page 16, et seq., of his charge as to the law of provocation. Said directions do not explain that the essence of the plea is the absence of wicked intent to kill or wicked recklessness as to the consequences (Drury v H.M. Advocate, supra).

(d) The effect of the directions at (a), (b) and (c), supra, is that the jury did not specifically require to determine when considering the issue of provocation, whether if they accepted that the [appellant] acted under provocation but nevertheless concluded, having regard to the manner, number and nature of the injuries inflicted upon the deceased, that intention to kill or recklessness as to the consequences was proved, they were satisfied that the appellant acted wickedly when he killed the deceased. The jury should have been specifically directed to make such a determination when considering the issue of provocation and the failure to do so amounts to a miscarriage of justice and the conviction should be quashed.

(e) Separatim, the learned trial judge misdirected the jury at pages 17, et seq., of his charge, that for provocation to reduce what would otherwise be a conviction for murder to culpable homicide one of the three requirements they must be satisfied about was that the appellant's retaliation must be (sic) a reasonable relationship, and not be grossly disproportionate, to what provoked the retaliation. The learned trial judge should have directed the jury that evidence relating to provocation in general, and proportionality between provocation and retaliation in particular, were simply factors which the jury should take into account in performing their general task of determining the appellant's state of mind (i.e. in determining whether he had a wicked intent to kill or was wickedly reckless as to consequences) at the time when he killed the deceased. The failure to so direct the jury amounts to a miscarriage of justice and the conviction should be quashed.

(f) Separatim, the learned trial judge at pages 22, 23 ad 24 (in particular at lines 7-15 of page 24) of his charge gave undue prominence, emphasis and weight to the Crown's submission that the appellant's retaliation was grossly disproportionate to the deceased's provocation such that the appellant's plea of provocation was excluded and that the only proper verdict was one of murder. The giving of such prominence to the Crown's submissions amounts to a miscarriage of justice and the conviction should be quashed."

Having regard to the date of the lodging of the note of appeal against conviction, 11 February 2005, and to the date of death of the trial judge shortly thereafter on 7 March 2005, no report is available from him in response to these grounds of appeal. Leave to appeal has been granted.

[4] On 29 September 2005, the Court, on the motion of counsel for the appellant, remitted the appeal to a bench of five judges on the basis, described in the interlocutor of that date, of "the issues, inter alia, of proportionality and provocation, in the light of the Opinions of the Court in Drury v H.M. Advocate ...". In an opinion delivered in association with the interlocutor on 29 September 2005, the Court observed of the trial judge's directions in regard to provocation:

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

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

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

On behalf of the appellant Mr Jackson referred at the outset to the analysis of the relationship of provocation to intentional killing in the opinion of Lord Justice General Rodger in Drury v H.M. Advocate 2001 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.

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

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

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

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

Mr Jackson accepted that if the law relating to provocation which took the form of an assault was as stated in Robertson, the appeal could not succeed. However, he maintained that there was no logical reason why the approach taken by the Lord Justice General in Drury in regard to the relationship between provocation and murder should not be applicable in cases in which the provocation took the form of assault. This involved a single test in determining whether it was proved that the accused had acted with the mens rea for murder. Accordingly, it would be open to the jury to conclude that an accused had acted with the wickedness which justified a conviction for murder where he had reacted to such provocation in a way in which no ordinary man or woman would have been liable to react. He sought the opportunity to make these submissions before a court of five judges which would be able to review the soundness of decisions such as Robertson.

We are satisfied that, in the light of the analysis of the relationship between provocation and murder in the opinion of the Lord Justice General in Drury, there is an issue as to whether it is a rule of law that for provocation by assault to lead to a conviction of culpable homicide there required to be a reasonably proportionate relationship between the violence offered by the victim and the reaction of the accused, and that this question should be resolved by a court of five judges."

[5] On 22 November 2005, following a procedural hearing, the Court ordered that the bench of five judges should be convened to consider the following questions:

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

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

 

Submission on behalf of the appellant

[6] When this appeal came before us, senior counsel for the appellant drew attention to the fact that the trial judge had directed the jury in ordinary terms regarding provocation, in conformity with the law as it was then understood to be. He referred to the requirement that there had to be a reasonably proportionate relationship between the violent conduct offered by the victim and the reaction of the accused. The issue in the present appeal was whether such a direction was appropriate. That was reflected in the questions which had been posed for this Court in the interlocutor of 22 November 2005. The issues arising in this case could be seen as a sequel to the decision in Drury v H.M. Advocate, in which five judges had considered provocation in the context of sexual infidelity; they had not made a decision in relation to provocation in the context of violence. He suggested that Drury v H.M. Advocate was an appropriate starting point for consideration of the issues he sought to raise. He wished to make clear that he did not seek to have changed the boundaries of what could be seen as provocation; in particular, he was not to argue that words alone might amount to provocation. If a change of that character were thought appropriate, the responsibility for making it would belong to Parliament. What was of concern to him was how provocation was otherwise to be defined. He emphasised that he did not contend that proportionality was wholly irrelevant. Nor did he intend to advance the argument, now discredited, that, since provocation was based upon the theory of loss of normal self-control, if that were established, the scale of retaliation might be unlimited.

[7] Senior counsel contended that the proper way in which to proceed was to look at what had been said, particularly by the Lord Justice General, in Drury v H.M. Advocate relating to the mens rea of murder and culpable homicide respectively. His contention was that, in any case where provocation was put in issue, there was but one question which was whether the accused had the mens rea necessary for murder. He went on to argue that, in deciding that issue the question should be asked whether the accused acted in the circumstances as an ordinary man would have done. Accordingly, proportionality would not disappear completely from the process of reaching of a decision as to provocation. However, it would not be the main focus for consideration.

[8] Senior counsel went on to review the opinions delivered in Drury v H.M. Advocate in detail. He observed that the existing proportionality test lent itself to the two stage approach frowned on in the opinion of the Lord Justice General at paragraphs 17-19. In the context of provocation based on sexual infidelity, it was evident that the proportionality test could have no place, on account of the impossibility of making a direct comparison between the provocation and the resulting violence. In that context, as was evident from Drury v H.M. Advocate, the ordinary man test had been adopted. It was the appellant's submission that that test should have universal application in all cases of provocation. If that suggestion were adopted, there would be a single question for consideration. If that were the law, there would be no need for a specific direction relating to proportionality, but proportionality would have certain implications in the application of the ordinary man test. Senior counsel did not agree that the proportionality test was specific; in any event, the ordinary man test was no less specific than it. If the ordinary man test were adopted, it was not submitted that it should be refined to take account of the particular characteristics of the panel. In particular, it would be contrary to public policy for the ordinary man test to take into account the special characteristics of a panel, for example that he had a quick temper.

[9] If the course commended by senior counsel for the appellant were adopted, it had to be recognised that the approach followed by Lord Justice General Cooper in his charge in H.M. Advocate v Smith (Glasgow High Court, 27 February 1952; unreported) - at least in relation to proportionality - would require to be abandoned. Senior counsel observed that, if his submissions were unsound and those which would be advanced by the Crown were correct, there would be a state of affairs in which two different approaches to provocation would be enshrined in the law, one relating to a situation where sexual infidelity was founded upon and the other where violence was the basis of the plea. It had to be asked why those two tests should both operate. The proportionality test should be discarded in favour of the ordinary man test; in the interests of the coherence of the law what was important was that an approach based upon the question of whether the mens rea for murder existed, or not, was desirable. Senior counsel went further, suggesting that the proportionality test was unnecessary and misleading; it focused the jury's minds on what was contended to be the wrong question. In any event, it was a concept difficult to apply. One of the problems in that connection was that, where one party to a violent altercation was killed, in the nature of things, a jury would be likely to regard that outcome as disproportionate as a response to lesser violence used at an earlier stage by the deceased. It would be preferable to utilise the single ordinary man test, which would be applicable in all situations. Notwithstanding this, senior counsel appeared to accept that the proportionality test could not be said to be necessarily inconsistent with the test for which he contended, and that it was difficult to envisage a case where a person's reaction to violence was grossly disproportionate, yet where that person could be said nevertheless to have reacted in the way that an ordinary man would. Senior counsel accepted the Crown's assertion that very many cases had been decided on the basis of the existing law, founded on the proportionality test. What might be the implications of that was uncertain. He wished to make clear that he was not advocating the adoption of the English law of provocation, which possessed certain shortcomings. However, the ordinary man test possessed simplicity and clarity. There was no reason to suppose that it could not satisfactorily be operated in the context of a provocation consisting in violence, as opposed to sexual infidelity.

[10] When pressed regarding what decisions would require to be overruled or disapproved, if the appellant's submissions were sustained, it was indicated that these were Thomson v H.M. Advocate, 1985 S.C.C.R. 448, Parr v H.M. Advocate 1991 S.C.C.R. 180, Lennon v H.M. Advocate 1991 S.C.C.R. 611, Low v H.M. Advocate 1993 S.C.C.R. 493, McCormack v H.M. Advocate 1993 S.C.C.R. 581 and Robertson v H.M. Advocate 1994 S.C.C.R. 589. Senior counsel recognised that once this Court had answered the questions posed in the interlocutor of 22 November 2005, the appeal would require to be considered again by a Court of three judges, in the light of the answers given.

 

Submissions on behalf of the Crown

[11] The Advocate depute began by summarising what he understood to be the contentions of the appellant. It was plain that, while the appellant was commending the ordinary man test, as a replacement for the proportionality test, in provocation, it was not being contended that the special characteristics of a panel had any part to play in the operation of the desiderated test. That position was understandable, since the law of England and of New Zealand were in a state of confusion arising out of such considerations. An example of that could be found in R. v Camplin [1978] AC 705. However, it was not the position of the Crown that the ordinary man test, as formulated in Drury v H.M. Advocate, in the context of provocation based on sexual infidelity, was wrong. However the Crown's position was that the proportionality test, hitherto applied in cases of provocation based upon the use of violence, should not be discarded. In that connection, the Advocate depute wished to make several points. First, the proportionality test was well fitted to be applied where violence was the basis of a plea of provocation. By contrast, the ordinary man test was not specifically focused upon provocation by violence. Secondly, the ordinary man test was capable of being applied in circumstances where the basis for the plea of provocation was words alone. Currently Scots law did not recognise provocation by words alone. However, if the ordinary man test were to be adopted, since it could be applied to provocation by words alone, it might well be seen as a step towards the admission of such provocation. It was not in the public interest that a change in that direction should be encouraged. Since the time of Burnett's Criminal Law , the proportionality of violent provocation and a violent response had been the basis of evaluation of a plea of provocation. Reference was made to inter alia page 33 of Burnett's Criminal Law where it was said:

" ... whether the injury which unexpectedly ends in death is of the same kind, or nearly commensurate with the injury which gave occasion to it; ... ".

Reference was also made to Hume and to Anderson, Criminal Law of Scotland, page 71, where it was said:

"And if retaliation is excessive in proportion to the provocation received, the crime will be murder."

That test was well established, clear and simple to operate and should not be disturbed. As already indicated the application of the ordinary man test had led to problems in other jurisdictions. In that connection reference was made to Attorney General for Jersey v Holley [2005] 2 AC 580, particularly paragraph 10. In England, before words were recognised as provocation, the proportionality test had been seen as appropriate, as could be seen from Mancini v Director of Public Prosecutions [1942] A.C. 1, per Viscount Simon at page 9.

[12] Thirdly, it was recognised that the law currently reflected public policy in Scotland in that a person who had been violently attacked should be expected to control themselves, to the extent of not killing the attacker. In that connection reference was made to paragraphs 25 and 26 of the opinion of Lord Justice General Rodger in Drury v H.M. Advocate. Public policy was an important element in an area of the law concerned with the extent to which wrongdoers might seek to relieve themselves of criminal responsibility. In that connection, reference was made to Brennan v H.M. Advocate 1977 JC 38. The adoption of the ordinary man test would tend to undermine the impact of public policy in this area.

[13] Fourthly, no sufficient reasons had been advanced, nor did they exist, to justify a change in Scots Law. There was no evidence of injustice flowing from the present law, nor was there any evidence of difficulty in understanding and applying the law as it was. The existing law was in accord with common sense and fairness; also it was simple to apply.

[14] Fifthly, provocation based on sexual infidelity had to be seen as an exceptional concession. In that connection reference was made to paragraph 26 of the opinion of the Lord Justice General in Drury v H.M. Advocate. There was no reason why the approach properly adopted in that exceptional case should be extended, so as to be of universal application. That was particularly true in a situation in which conceivably sexual infidelity might, in the future, be seen as an insufficient basis for a plea of provocation. Changing social mores had resulted in a diminution of the significance of sexual infidelity.

[15] Sixthly, it was submitted that there was nothing wrong or illogical in the application of the proportionality rule in relation to violent provocation. In this connection reference was made to paragraphs 22-24 of the opinion of the Lord Justice General in Drury v H.M. Advocate. It had to be recognised that there was a range of degrees of loss of control. Against that background the insistence upon the proportionality of a reaction to violence was quite appropriate. Seventhly, a practical effect of reformulation of the law would be that that reformulation would be seen as having retrospective effect. It would be most undesirable that appeals should be brought forward from cases long in the past consequent upon such a reformulation of the law. If a change of the kind desiderated by the appellant ought to be made, it should be made by Parliament, since, if that were done, the change would not have retrospective effect.

[16] Turning to his particular response to the submissions of senior counsel for the appellant, the Advocate depute emphasised that no cogent criticism had been made of the proportionality test. The appellant's argument appeared to be based upon a desire to improve the coherence of the law. In any event, public policy had a large part to play in this area. That being so, it was unrealistic to expect perfect logic. The difficulties of endeavouring to achieve that were highlighted in R. v Smith (Morgan) [2001] 1 A.C. 146. Refinements of the ordinary man test were prone to result in nightmarish complexity and incomprehensibility, so far as a jury was concerned.

[17] Senior counsel for the appellant had argued that the proportionality test was difficult to apply in respect that where the infliction of death in response to violent provocation had occurred, there could be no proportionality. The fallacy in that approach was that what had to be evaluated according to the proportionality test was not the consequence of violence, but the extent of it. Those were different.

[18] It had been argued that the reasoning in Drury v H.M. Advocate was so persuasive that the criterion developed there of the ordinary man ought to be extended to all cases of provocation. It appeared to be envisaged that that step would assist in the development of a more coherent approach. However, there were difficulties attached to attempting to develop a theory of mens rea for murder that took account of what were essentially defences or, at least, pleas of mitigation to what would otherwise have been murder. While it had been recognised in Drury v H.M. Advocate that the existing definition of murder was incomplete and therefore inadequate, any further elaboration of that definition would be dangerous. In this connection reference was made to Jones v H. M. Advocate 1989 S.C.C.R. 726. In Drury v H.M. Advocate there had been criticism of the concept of murder being "reduced to culpable homicide". However, while such language might offend the academic lawyer, in practice, it was a convenient means of explaining to a jury the effect of a successful plea of provocation, or, indeed, of diminished responsibility. In any event, in Drury v H.M. Advocate, there had been no unanimity in relation to that aspect of the case. In view of the opinion expressed by Lord Justice General Rodger in Drury v H.M. Advocate, it should be recognised that Hume had propounded different modes of analysis of provocation. A coherent analysis of provocation in terms of the mens rea of murder was not practicable, having regard to the public policy limitations on the plea. The law should not be based on such considerations.

Decision

The existing law

[19] Before us there was little controversy over the state of the existing law in relation to provocation taking the form of the infliction of actual violence. In Thomson v H.M. Advocate, at page 458 Lord Justice Clerk Ross said:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

Reasons advanced for change of the present law

[20] As we understood the submissions of senior counsel for the appellant, three reasons were advanced in support of his submission that this Court should discard the foregoing formulation of the criterion to be used in the context of provocation by violence, in favour of a formulation which would involve the extension of what we have referred to as the ordinary man test, beyond the area in which it has hitherto operated since the decision in Drury v H.M. Advocate, that is to say in provocation taking the form of sexual infidelity, to all cases of provocation, including sexual infidelity and provocation by violence. In the first place, it was argued that the making of the change desiderated would introduce greater coherence and clarity into the law of provocation. Instead of there being two criteria applicable to the two different situations mentioned, there would be but one. It was said to be reasonable to suppose that the law should be formulated in such a way that the criterion selected should be applicable to all cases of provocation. In the second place, it was contended that there was an inherent difficulty in applying the reasonably proportionate relationship test to a situation where one person had offered ex hypothesi non-fatal violence as provocation, but had subsequently been killed by the person provoked. In the third place - and we understood this to be the principal argument advanced in favour of change - it was contended that the adoption of the ordinary man test would be consistent with the analysis of the law of provocation set forth, particularly in the opinion of the Lord Justice General, in Drury v H.M. Advocate.

[21] In regard to the first of these reasons, we would readily agree that, in principle, coherence and clarity in the law are desirable ends. However, as in many other areas of human endeavour, compromise may be necessary, having regard to other considerations. Whatever rules of law are to be applicable, they must be appropriate to the circumstances in which they operate. As the law currently stands, in relation to provocation taking the form of violence, the criterion of a reasonably proportionate relationship between the conduct amounting to the provocation and the actings of the accused is well established and has been clearly understood over a period of many years. That criterion appears to us to be apt in the context in which it applies. Violence as provocation can readily assessed and weighed in comparison to violence in retaliation to provocation. We are unaware of any practical difficulties experienced in the application of this particular criterion within the scope of its operation. None was brought to our attention. In our view, this criterion is readily explicable to juries. Indeed, on one view, it may be thought to have been adopted as a more robust, more readily understandable way of applying, if not the same, at least a similar standard to that which would be applied, if the test of an ordinary or reasonable man were to be selected. As recorded above, senior counsel for the appellant appeared to accept that the proportionality test could not be said to be inconsistent with the test for which he contended, and that it was difficult to envisage a case where a person's reaction to violence was grossly disproportionate, but he could be said nevertheless to have reacted as an ordinary man would have done. Furthermore, in H.M. Advocate v Smith, the Lord Justice General gave directions which could be said to have equiparated the two tests. It is not difficult to see, however, why it has been held that the criterion of proportionality could not readily be used in the context of provocation based upon the discovery of sexual infidelity. In the latter kind of provocation, no violence is involved with which violence in retaliation could be compared. In these circumstances it can be understood why the Court, in Drury v H.M. Advocate, adopted another test, the ordinary man test, for application in the case of that kind of provocation. The result is, of course, the simultaneous existence of two different tests, applicable to the different situations described. No doubt, in a perfect world, it might be thought desirable to have a unified test for all cases of provocation. While such a unified test could be established if the ordinary man test were rendered applicable to cases of provocation by violence, we have not been persuaded that that course should be taken simply to achieve a universally applicable test, since, as we shall explain, we perceive certain disadvantages in the use of the ordinary man test in circumstances where its use is not strictly necessary. Accordingly, we do not regard the first reason for a change in the law advanced by senior counsel for the appellant as persuasive.

[22] As regards the second of the foregoing reasons, while there might be a superficial attraction in the idea that there could never be a reasonably proportionate relationship between violence, as provocation, which does not cause death, and violence as retaliation, which does, we consider that his apparent anomaly does not survive closer examination. What the reasonably proportionate relationship test involves is a comparison between the violence constituting the provocation and the violence used in retaliation to it, which has caused death. The fact that death has been caused by the latter violence does not mean that that violence was necessarily disproportionate to the violence used in provocation. It is a matter of common experience that death may be caused by quite modest violence. We consider that this particular submission is fallacious because it proceeds upon the making of a comparison involving the consequences of the violence used in retaliation, as opposed to its nature and extent, which is what the reasonably proportionate relationship test requires to be considered.

[23] The third of the foregoing reasons relied upon by senior counsel for the appellant was derived from a close consideration of the decision in Drury v H.M. Advocate and, in particular, the analysis in the opinion of the Lord Justice General. To that we now turn. The task which the Lord Justice General set himself is described in paragraph 8 of his opinion. Although he recognised that the issue in the appeal under consideration was apparently narrow, it was his view that it could not be resolved without looking into wider aspects of the doctrine of provocation and, more generally, into the law of murder and culpable homicide. In undertaking that task, the Lord Justice General conducted a wide-ranging examination of the law, as expounded by Hume, Alison and Macdonald, in addition to considering a number of relevant authorities. On the basis of his consideration of the case of H.M. Advocate v Hill 1941 JC 59, arising out of events which took place in January 1941, where the accused had shot both his wife and her lover, intending to kill both of them, but nonetheless was convicted of culpable homicide on account of provocation consisting in the discovery of sexual infidelity, in association with the other matters mentioned, the Lord Justice General, it seems, came to the conclusion that, as he put it in paragraph 17:

"In reality, however, evidence relating to provocation is simply one of the factors which the jury should take into account in performing their general task of determining the accused's state of mind at the time when he killed his victim."

Even though, as in the case of H.M. Advocate v Hill, there was an intention to kill, nevertheless, on account of the existence of provocation as recognised by the law, there was not that "wickedness of heart", envisaged by Hume as an essential ingredient of the mens rea of murder. As we understand it, it was principally for that reason that the Lord Justice General regarded the frequently used terminology of provocation "reducing murder to culpable homicide" as essentially misleading.

[24] The Lord Justice General's reasoning is brought together in what he said in paragraph 20 of his opinion:

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

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

[25] As we understood the submissions of senior counsel for the appellant, it was essentially upon the basis of the Lord Justice General's analysis that he proceeded to argue that the criterion for provocation which the law should recognise in the context of the use of violence ought to be the same as that which the Court in Drury v H.M. Advocate decided ought to be applied in the context of provocation based upon sexual infidelity. In order to see whether that argument is sound, it is appropriate to examine certain further passages in the Lord Justice General's opinion in Drury v H.M. Advocate where consideration is given to the criterion to be employed in cases of provocation based upon sexual infidelity.

[26] In paragraph 22 of his opinion in Drury v H.M. Advocate, the Lord Justice General considered the argument that, because the concept of provocation involved a loss of control, there was no reason to interject any particular criterion as regards the actions of the person provoked. In paragraph 23, rejecting that argument, he said:

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

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

[27] In our view, it follows from that approach to a plea of provocation that the law requires to develop, as a matter of policy, criteria which must be satisfied before provocation in the relevant sense can be recognised, with the effects which are well understood. The Lord Justice General considered those matters in paragraph 25 of his opinion. There he said:

"In matters of homicide Scots law admits the plea of provocation only within certain bounds which are considerably narrower than those within which it operates in English law. In Scots law it applies only where the accused has been assaulted and there has been substantial provocation. In English law, by contrast, even a slight blow or mere jostling may be sufficient to admit the plea. In Scots law, no mere verbal provocation can palliate killing. The same applied in 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."

[28] The Lord Justice General went on to consider further the criterion which ought to be applied in a situation where the latter type of provocation was involved. In paragraph 29, he favoured what we have referred to as the ordinary man test in such cases. In relation to that, it is appropriate to note that he considered the possibility of whether the special characteristics of a particular accused could be taken into account, but decided that, since in the case before him it was not said that the accused had any special characteristics, it was not necessary to consider how such a test might be applied in the case of an accused who did. We shall say more about that in due course. It is also to be noted that, in relation to that aspect of the matter, as the Lord Justice General stated in the same paragraph:

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

[29] Finally, it is appropriate to note what was said by the Lord Justice General concerning that type of provocation, with which we are concerned here, where the provocation is based upon the infliction of physical violence by a person who is then killed. He refers to the series of cases which we have already mentioned in which the reasonable proportionality test was affirmed. He goes on to state in paragraph 35:

"This bench of five judges was indeed convened so that we could, if need be, review those earlier cases. For the reasons which I have given, I am satisfied that the trial judge was in fact wrong to direct the jury to apply that test in the present case where the provocation did not take the form of an assault. But, precisely because the present case is distinguishable in this way, we did not in the event hear any substantial argument as to the validity of the requirement, as a matter of law, that in the case of provocation by assault the retaliation should not be grossly disproportionate to the assault constituting the provocation. I accordingly express no view on the point, except to notice that, even in England and New Zealand, where there is no requirement that, as a matter of law, the response should be proportionate to the provocation, the nature and degree of the accused's response are none the less aspects of the evidence to which the jury can have regard when deciding whether the accused reacted in the way in which an ordinary man would have been liable to react."

[30] Against the background of the foregoing treatment of the criterion by which provocation, taking the form of the discovery of sexual infidelity, ought to be evaluated and the Lord Justice General's earlier analysis of the mens rea involved in murder and culpable homicide, as it relates to a plea of provocation, we perceive no necessary connection between these two matters. Whatever view one may take about his analysis of mens rea, it does not lead necessarily to a conclusion on the question of the criterion that should be adopted for use in the assessment of a plea of provocation, either in the context of sexual infidelity, or violence, as the basis of the plea. The latter issue, as the Lord Justice General points out in the passage quoted from paragraph 25, requires to be considered in the light of public policy. Putting the matter in another way, the tribunal of fact, in cases where provocation is pled, requires to apply some appropriate criterion to assess the plea, quite distinct from any jurisprudential theory relating to mens rea in such cases. For these reasons we would reject senior counsel for the appellant's second main submission. He contended that the adoption of the ordinary man test would be consistent with the Lord Justice General's analysis of the mens rea of murder and culpable homicide, as it related to a plea of provocation. To that contention we consider that the riposte can be made that so would the adoption of the reasonable proportionality test be consistent with that analysis. Finally, it is worth observing that it is likely that the Lord Justice General was of the same view, else he would have been unable logically to reserve his opinion as he did in paragraph 35.

[31] In these circumstances, it is then appropriate to consider whether there exist any reasons of public policy, or expediency, to justify the change in the law relating to provocation, based upon violence, advocated by senior counsel for the appellant. In that connection, during the course of the debate before us, consideration was given to the law of England and Wales as to provocation. As we understand it, prior to the enactment of section 3 of the Homicide Act 1957, as a result of the decision in the House of Lords in Mancini v Director of Public Prosecutions [1942] A.C. 1, the common law of provocation was tolerably well settled. To quote the words of Lord Hoffman in R. v Smith (Morgan) [2001] 1 A.C. 146, at page 157:

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

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

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

[32] The law of England and Wales was changed by the enactment of section 3 of the Homicide Act 1957, which provides:

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

[33] However, in R. v Smith (Morgan), the extent to which section 3 of the 1957 Act enabled particular characteristics of the defendant to be attributed to the hypothetical reasonable man, in determining the standard of self-control to be expected of him, was considered. The defendant had relied on the defence of provocation and had adduced psychiatric evidence of a mental condition which had had the effect of reducing his power of self-control below that of an ordinary person. The judge had directed the jury that the defendant's mental impairment was a characteristic to be attributed to the notional reasonable man, when determining whether it affected the gravity of the provocation to a reasonable man, but not his loss of self-control. The defendant was convicted of murder. The Court of Appeal (Criminal Division) allowed the defendant's appeal and substituted a verdict of manslaughter on the grounds that evidence of the defendant's mental impairment was a characteristic to be attributed to the notional reasonable man for the purposes of the defence of provocation under section 3 of the Act and that, in so attributing it, no distinction was to be drawn between its relevance to the gravity of the provocation to the reasonable man and his reaction to it, and that therefore the judge's direction to the jury was wrong. There was an appeal by the Crown to the House of Lords which was dismissed. It was held by a majority of three to two that, in determining under section 3 of the 1957 Act whether provocation was enough to make a reasonable man do what the defendant did, the jury was required to ask whether the degree of self-control exercised by the defendant was that which reasonable people with his characteristics would have exercised; that all the particular characteristics of the defendant were to be taken into account in deciding both whether he was in fact provoked and whether the objective element of provocation was satisfied; that the question for the jury was whether the circumstances were such as to make loss of self-control sufficiently excusable to reduce the gravity of the offence from murder to manslaughter.

[34] However, in England, matters did not rest there. In Attorney General for Jersey v Holley the decision in R. v Smith (Morgan) was disapproved. In this latter case, the defendant, who was a chronic alcoholic, was charged with the murder of his girlfriend, whom he had killed in a quarrel while under the influence of drink. At the trial, he admitted the killing, but pleaded not guilty to murder in reliance on the defence of provocation under Article 4 of the Homicide (Jersey) Law 1986, which had been enacted in terms identical to section 3 of the Homicide Act 1957. He adduced expert medical evidence to the effect that his alcoholism was a disease, and in consequence a characteristic, of which the jury should take account when assessing his loss of self-control. In directing the jury on the question whether, for the purposes of Article 4, the provocation was enough to make a reasonable man act as the defendant had done, the deputy bailiff referred them to the medical evidence and invited them to consider whether any particular characteristic reduced the defendant's power of self-control so as to excuse his action. Qualifying his direction the deputy bailiff added that drunkenness at the time of the killing which rendered a defendant more susceptible to being provoked could not be taken into account in his favour. The defendant was convicted of murder. On his appeal the Court of Appeal of Jersey concluded that the disease of chronic alcoholism, unlike drunkenness which afforded no defence, was the type of characteristic which the jury could have taken into account when determining whether his loss of self-control was excusable. Ruling that the deputy bailiff's qualification amounted to a misdirection, they allowed his appeal and substituted a conviction of manslaughter. The Attorney General for Jersey appealed to the Privy Council, undertaking however not to seek to restore the defendant's conviction of murder. By a majority of six to three the appeal was allowed. It was held that, having regard to the availability of a defence of diminished responsibility enacted in parallel to that of provocation, and on its true construction, Article 4 required a jury, in determining whether the provocation was enough to make a reasonable man do as the defendant did, to assess the gravity of the provocation by reference to his particular characteristics, but to judge his loss of self-control by applying a uniform objective standard of the degree of self-control to be expected of an ordinary person of the defendant's age and sex with ordinary powers of self-control; that since the legislature had chosen an objective standard of general application as that by which a defendant's loss of self-control was to be determined, it was not open to courts to develop a more flexible standard which permitted a jury to take account of the defendant's particular abnormalities; and that, accordingly, the defendant's disease of alcoholism was not to be taken into account in the jury's determination of whether his loss of self-control satisfied Article 4.

[35] Our purpose in referring to section 3 of the Homicide Act 1957, Article 4 of the Homicide (Jersey) Law 1986 and to the associated authorities is to show that the adoption of an objective standard related to the reasonable man, in the context of provocation, has given rise to numerous problems. In Attorney General for Jersey v Holley, at paragraph 27, Lord Nicholls of Birkenhead, giving the judgment of the majority, said this:

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

[37] While the criterion of the ordinary man contended for on behalf of the appellant in this case is, of course, different from the concept of the reasonable man, enshrined in section 3 of the 1957 Act, we apprehend that the introduction of the concept of the ordinary man, as a criterion by reference to which provocation might be judged, into Scots law, save where it has been considered necessary, as in Drury v H.M. Advocate, would be most unwise, in the light of the difficulties which a comparable objective standard has created in the law of England. In the case of the use of the ordinary man concept, the same issues would, we apprehend, be likely to emerge concerning the particular characteristics of the accused as have emerged and have created difficulties in connection with the use of the reasonable man concept in England. This problem would be likely to arise in the event of any criterion employing a notional individual being adopted.

[38] Furthermore, in Drury v H.M. Advocate Lord Nimmo Smith, in paragraph 9 of his opinion, speaking of the introduction of a change of criterion in relation to provocation in the context of sexual infidelity, said:

"The change proposed by the Advocate depute would be radical. Provocation by infidelity is already a 'peculiar case', in Hume's phrase, and it would be highly undesirable to redefine its scope without undertaking a comprehensive review of provocation in all its various forms, whether or not already recognised by the criminal law. This would be a matter for the Scottish Parliament. In 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.

[39] In all of these circumstances and for the reasons explained, we have reached the conclusion that there are no good reasons for us to effect an alteration in the criterion of reasonable proportionality which is currently applied in relation to provocation in the context of violence. We favour the formulation of the law as set out in the Opinion of the Court delivered the Lord Justice Clerk in Robertson v H.M. Advocate already quoted. Accordingly, we answer the first question posed in the interlocutor of 22 November 2005 in the affirmative. As a consequence, it is unnecessary for us to answer question 2.

[40] Having reached this conclusion, we shall remit this appeal to an ordinarily constituted Court of three judges to reach a determination on the grounds of appeal tabled by the appellant.

 



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