Provoking argument

Provocation and proportionality

The question of provocation, when mens rea is being assessed, is never an easy one (philosophically, at least), and so it is with interest that one turns to the decision of a bench of five judges in Gillon v HMA 2006 GWD 27-601. The proposition for the consideration of the court was whether, in the light of what had been said in the case of Drury v HMA 2001 SLT 1013, there was a rule of law requiring a reasonably proportionate relationship between the provocative conduct and the reaction of the accused, and, if not, by what standard the conduct of the accused should be measured. At the trial, a plea of provocation (in the form of an assault) had been advanced and the matter had been dealt with in terms of the “reasonably proportionate” rule. At the appeal it was argued that the “ordinary man” test should not be restricted to cases of sexual infidelity but should be applied generally, and thus in the present case, and that in particular this would be consistent with the analysis of the law of provocation set out by the Lord Justice General in Drury.

The court held that there was, in modern law, a rule, particularly as expounded in Robertson v HMA 1994 SLT 1004, relating to the requirements for a plea of provocation. The criterion of a reasonably proportional relationship between the provocation and the response of the accused was well established and understood, did not appear to have caused difficulties in the past and was capable of being readily explained to juries. The court also set its face against the introduction to Scots criminal law of the concept of the ordinary man, and in particular noted the difficulties which had arisen in England when attempts were made to take into account the particular characteristics of an individual accused in the context of a general and would-be objective standard involving the ordinary man. The case, obviously, demands detailed study from anyone thinking of raising the question of provocation on behalf of a client charged with assault, which would seem to guarantee it a wide readership.

Representations affecting sentence

Another case involving questions of degree of culpability is that of Arshad v HMA 2006 GWD 27-603, which is an appeal against sentence in a case of incitement to murder. The appellant was said to have reacted in the way he did in response to news of his daughter’s marriage to a non-Pakistani. Two points made by the appeal court are of particular interest. The first is that the court pointed out that in respect of a crime of this sort, previous good character, and the unlikelihood of repetition, were in the nature of things not of great significance. Secondly it was observed that the views of the appellant’s community, as set out in a petition presented to the court, had been expressed at a time when there was an ongoing appeal against conviction and it was not to be assumed that the same favourable views would continue to be held once the appeal against conviction had been refused.

Incidentally, the question of views about the accused cropped up again in the case of HMA v Dickson 2006 GWD 26-588, in which the defrauded party apparently expressed the view to the court that the accused should not be given a custodial sentence. This was not the view taken by the sentencing judge and perhaps illustrates the distinction between victim impact statements which (self) assess the effect on the victim and those which go on to suggest an appropriate sentence. One wonders how widespread the view is that we should be spared both, on the view that all relevant facts should be mediated through the procurator fiscal as a public official who takes no part in the suggesting of an appropriate sentence. To expect the victim of a crime to be satisfied by the sentence imposed involves a hidden assumption, to the implications of which those in favour of such statements have never faced up, namely that the victim is always a reasonable person acting in a responsible way. In any case, as Vivien Stern has pointed out, it is an error to assume that the customer or consumer in criminal proceedings is the victim. Like it or not, criminal sentencing is, critically, about what is appropriate for the criminal.

Turns of phrase

Turning now to evidence, one matter which sometimes causes difficulty is the evidential value of an exculpatory statement made by an accused during a police interview but not supported by that accused in evidence. In the case of Murphy v HMA 2006 GWD 24-530, the judge directed the jury that such statements should be regarded “with a pinch of salt”. This expression, it may well be felt, raises difficulties of its own, which will always arise when there is recourse to an expression which partakes of the colloquial, or even of slang. This is because there may be disagreements about what the expression, legally, actually means. The popular usage, “I will take that with a grain of salt”, probably now means “I will not believe that” rather than “I will examine that proposition with extra care”.

The difficulty, however, is not what the speaker meant but how the hearer understood what was said. The conclusion of the appeal court was that while a simple direction to bear in mind that the statement had not been made on oath or subjected to cross examination might have been preferable, in the context of the whole of the judge’s charge it could not be said that there had been a misdirection or that a miscarriage of justice had occurred. On a personal note the present writer, having once suggested to a jury in Peebles that they might consider that “facts are chiels that winna ding”, was sufficiently struck by how garbled this became in the shorthand transcript to have thereafter refrained from quotation of Robert Burns, or indeed of any other poet.

Facets of fairness

Two cases, dealing broadly and in differing ways with fairness, are to be found in 2006 GWD issue 25. HMA v Higgins (555) related to a trial at which objection was taken to evidence being given as to what they might have overheard by police officers who had been posted to listen outside the adjacent cells of the two accused. While the contents of the police notebooks had been disclosed, it was only at the trial that the defence realised that the accused had been deliberately placed in adjacent cells and the officers instructed to listen. The trial was adjourned for the officers to be precognosced, and thereafter the Crown argued that the statements of the accused had been obtained because of the seriousness of the crime, that they were voluntary and although article 8 of the European Convention had been breached, leading the evidence would not deprive them of a fair trial and the disclosure together with the subsequent precognitions had amounted to sufficient disclosure.

The trial judge (Lord Macphail) held that, although awkwardly and expensively, there had now been sufficient disclosure; but that the police strategy amounted to “intrusive surveillance” in terms of the Regulation of Investigatory Powers (Scotland) Act 2000. It was pointed out that there had been no attempt to obtain authorisation and that the principle of fairness had been transgressed by deception. It was also observed that in the circumstances where the same test would be applied at common law it was superfluous to raise the matter as a devolution issue.

Gair v HMA (558) is a case referred by the Scottish Criminal Cases Review Commission in respect of a conviction on a charge of murder. The trial had involved the evidence of an eyewitness, M, but there had been non-disclosure both about his psychiatric history and about previous inconsistent police statements. The court held that if there had been disclosure the defence would have been in a position to undermine the credibility and reliability of M’s evidence and thus the possibility that the jury might have reached a different verdict could not be excluded. The appeal against conviction was allowed.

The evidence in question

So far as evidence is concerned, McInally v HMA 2006 GWD 23-503 is of interest as it contains a statement about something often misunderstood, namely how a qualified admission is to be treated evidentially. The appellant had been convicted of assault to severe injury and danger of life, and appealed inter alia on the basis, first, that the jury should have been directed that the prosecutor’s questions did not amount to evidence and that the jury were not entitled to take the appellant’s admission that he hit the complainer without the qualification that he did so in self-defence. The appeal was refused. The court said that it was abundantly clear that the jury were told that it was their duty to return a verdict according to the evidence. One is tempted to remark here that if we cannot rely on juries being able to distinguish between questions and answers then we have been parties to 800 years or thereabouts of miscarriages of justice. It was also affirmed that it was open to a jury, properly directed, to accept an incriminating admission and reject an exculpatory qualification.