News In Focus
18 August 2006
Appeal judges stand by provocation test
For a plea of provocation to succeed the law requires a reasonably proportionate relationship between the provocative conduct and the reaction of the accused.
Five judges in the criminal appeal court yesterday rejected a challenge to the established rule by Andrew Gillon, who was convicted of the murder in 1998 of 25-year-old Gary Johnstone by battering him with a spade after both had been on a drinking session. At his trial Gillon claimed that Johnstone had attacked him first with the spade and he had won hold of it.
Gillon's counsel, Gordon Jackson QC, had recognised that there was a line of decisions supporting the "proportionate relationship" test but obtained a hearing before a full bench because of the 2001 case of Drury. In that decision, a case of provocation by the discovery of sexual infidelity, Lord Justice General Rodger had applied the test of whether the accused had acted in a way in which no ordinary man or woman would have been liable to act.
Mr Jackson argued that the law should not apply different tests depending whether the case involved violence or sexual infidelity. The "ordinary man" test could be applied in both situations and would bring more coherence to the law.
However Lord Osborne, delivering the opinion of the court, said that difficulties had arisen in other countries which attempted to apply a "reasonable man" test, which the court believed was similar to the "ordinary man". These "would be likely to arise in the event of any criterion employing a notional individual being adopted", he said.
"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", he concluded. If there was to be a change in the law, that had to be a matter for Parliament.
The court's decision can be read at http://www.scotcourts.gov.uk/opinions/2006HCJAC61.html .