Appeal court rejects case based on third party provocation

A man convicted of murder has lost an appeal based on the contention that the trial judge should have directed the jury that provocation could arise in relation to the acts of the deceased towards a third party.

Without finally ruling on whether the law could support such a claim – it was held that there was no evidence in this case on which any such plea could have succeeded – the judges suggested that if the doctrine applied, it might be restricted to cases where the person assaulted stood in very close relation to the individual who reacted. However it was inadvisable to attempt an all-embracing definition.

The appeal was brought by Nico Donnelly, who fatally stabbed Jamie Johnstone outside a block of flats. The accused, along with a Cameron Ferguson, had been standing outside the block with a group of others, all of whom had been drinking and taking drugs. CCTV showed the deceased walking towards the block, where his girlfriend lived, carrying a bottle of alcohol. The accused approached him and as he was in conversation with Ferguson, the appellant stabbed him twice in the chest.

In evidence the appellant said the deceased had shouted and sworn at Ferguson and threatened him with the bottle. The appellant took his knife oiut to deter him and the deceased had swung for him. The judge directed the jury on the basis of provocation should the jury conclude that the appellant had been assaulted by the deceased. On appeal it was argued that he should have gone further and that there was authority that provocation was not so restricted.

Delivering the opinion of the court, Lord Justice Clerk Lady Dorrian, who sat with Lords Menzies and Turnbull, said that whereas the law recognised self defence of a third party, provocation was "quite distinct" even if the two had certain common elements. "Whilst elements of the pleas may overlap, provocation does not arise from the self-defence and it would seem to be a fallacy, or at least a somewhat simplistic approach, to entwine the two pleas in this way and argue that provocation should, by analogy, be available where the accused claims to have acted in defence of a third party."

Lady Dorrian observed that early cases sometimes appeared to confuse the two, and were often unclear as to the basis on which a verdict of culpable homicide as opposed to murder was returned. In none of the cases relied on by the appellant had the issue of principle underlying the present appeal been "central to the determination, or even the subject of considered discussion". On the other hand, in Drury (2001) there were statements that suggested provocation was limited to a substantial assault on the accused. 

The court noted the infidelity exception, but suggested that the modern interpretation of it "would accord with the notion of provocation as a personal plea". 

"In all the cases relied on for supporting a tacit approval of third party provocation," Lady Dorrian continued, "the person assaulted stood in a very close relation to the individual who reacted. If the doctrine applies in our law, it may be that it is restricted to such cases, although we recognise that there may be difficulty then in defining its limits."

For the present case, "There was no assault by the deceased on Ferguson, nor even any threatening gesture towards him, and the highest the case amounted to was an allegation that verbal threats had been made. It is abundantly clear on the authorities... that such conduct would not be sufficient foundation for a plea of provocation in homicide."

She concluded: "We consider that the inadvisability of attempting an all-embracing definition, and the disadvantages, and indeed potential dangers of doing so, are exacerbated when the issue arises in a context in which the plea contended for could never hope to operate."

The court also refused an appeal against 20 years' imprisonment as the punishment part of the sentence.

Click here to view the opinion of the court.