Smith v HM Advocate
| Jurisdiction | Scotland |
| Judge | Lord Justice General (Carloway),Lord Malcolm,Lord Pentland |
| Judgment Date | 01 July 2021 |
| Neutral Citation | [2021] HCJAC 35 |
| Docket Number | No 26 |
| Court | High Court of Justiciary |
[2021] HCJAC 35
Lord Justice General (Carloway), Lord Malcolm and Lord Pentland
Advocate (HM) v Kizileviczius 1938 JC 60; 1938 SLT 245
Advocate (HM) v Smith HCJ, 27 February 1952, unreported
Anderson v HM Advocate [2010] HCJAC 9; 2010 SCCR 270; 2010 SCL 584; 2010 GWD 12-214
Atkinson v HM Advocate 1987 SCCR 534
Brown v HM Advocate 1993 SCCR 382
Donnelly v HM Advocate [2017] HCJAC 78; 2018 SLT 13; 2017 SCCR 571; 2017 SCL 1026
Drury v HM Advocate 2001 SLT 1013; 2001 SCCR 583
Duffy v HM Advocate [2015] HCJAC 29; 2015 SCCR 205; 2015 SCL 544; 2015 GWD 11-188
Duncan v HM Advocate [2018] HCJAC 60; 2019 JC 9; 2018 SCCR 319; 2018 GWD 33-421
Ferguson v HM Advocate [2015] HCJAC 89; 2015 SCL 972; 2015 GWD 35-563
Gillon v HM Advocate [2006] HCJAC 61; 2007 JC 24; 2006 SLT 799; 2006 SCCR 561
Gubinas v HM Advocate [2017] HCJAC 59; 2018 JC 45; 2017 SLT 1017; 2017 SCCR 463; 2017 SCL 828
Lennon v HM Advocate 1991 SCCR 611
Low v HM Advocate 1994 SLT 277; 1993 SCCR 493; The Scotsman, 24 February 1993
McIntosh v HM Advocate sub nom Copolo v HM Advocate [2016] HCJAC 119; 2017 JC 143; 2017 SLT 45; 2017 SCCR 45; 2017 SCL 247
Meikle v HM Advocate [2014] HCJAC 116; 2014 SLT 1062; 2015 SCL 54
Parr v HM Advocate 1991 JC 39; 1991 SLT 208; 1991 SCCR 180
Robertson v HM Advocate 1994 JC 245; 1994 SLT 1004; 1994 SCCR 589
Shuttleton v Orr [2019] HCJAC 12; 2019 JC 98; 2019 SLT 719; 2019 SCCR 185
Thomson v HM Advocate 1986 SLT 281; 1985 SCCR 448
Hume, D, Commentaries on the Law of Scotland Respecting Crimes (4th Bell ed, Bell and Bradfute, Edinburgh, 1844), i, 247–248
Macdonald, JHA, A Practical Treatise on the Criminal Law of Scotland (5th Walker and Stevenson ed, W Green, Edinburgh, 1948), pp 93, 94
Justiciary — Crime — Murder — Provocation — Misdirection by omission — Failure by trial judge to direct on issue of provocation — Whether requirements of provocation met — Whether miscarriage of justice
Paul Stuart Smith was indicted at the instance of the Right Honourable W James Wolffe QC, Her Majesty's Advocate, for trial in the High Court of Justiciary at Edinburgh on a charge of murder. The appellant pled not guilty. On 22 October 2020, he was convicted by the jury and, thereafter, sentenced to life imprisonment. The appellant appealed against his conviction to their Lordships in the High Court of Justiciary.
The appellant was indicted on a charge of murder. Evidence was led that the appellant had armed himself with a knife prior to attending at Edinburgh City Football Club where the deceased had been drinking. Following an exchange between the appellant and another, the appellant was surrounded by around seven people outside the club, one of whom recorded events on a mobile phone. The deceased offered to fight the appellant and threatened to kill him. The appellant repeated that he had no interest in fighting him. The deceased invited the appellant to fight him again, asking, “what have you got?”. In response, the appellant stabbed the deceased in the neck, fatally wounding him. The terms of the exchange between the appellant and the deceased were agreed by joint minute. The mobile phone recording of the incident was played to the jury. The trial judge did not consider that the requirements for provocation had been met and did not direct the jury on provocation. The appellant was convicted. He appealed.
The appellant argued that there had been sufficient evidence to conclude that he had been subjected to an assault by ‘menaces’ and that, in reaching his decision not to direct the jury on provocation, the trial judge had failed to take into account the value of the recording played to the jury.
The Crown contended that the trial judge was only obliged to direct the jury on provocation if the jury might reasonably find the necessary elements made out and that, in all the circumstances, the evidence had failed to satisfy those elements.
Held that: (1) the requirements of provocation were well established, had a tendency to overlap and ought not to be looked at in isolation and, if evidence were available that was capable of supporting each of the elements, the issue of an alternative verdict of culpable homicide should be left to the jury; the actings said to amount to provocation required to be substantial and, on the evidence, they had not been (paras 20–22); (2) while the jury would have been entitled to infer that the appellant had been attacked physically, there had been no evidence upon which the jury could determine that the other elements of provocation had been present and, even had there been evidence of loss of self-control and instant retaliation in hot blood, the violence used had been, on any view, disproportionate to the threat offered and no jury could have regarded the reaction of the appellant as anything other than grossly disproportionate (paras 23, 24); and appeal refused.
Observed that great care required to be taken by both prosecution and defence when deciding whether it was necessary to show images of a graphic nature to members of the jury as the lasting effects of such images could be significant and those effects required to be considered and guarded against; if such images were deemed a necessary element of the proof, their use ought to be discussed by parties and raised with the court at the preliminary hearing as the subject of a considered case management decision (para 26).
Drury v HM Advocate 2001 SLT 1013, Gillon v HM Advocate2007 JC 24 and Ferguson v HM Advocate2015 SCL 972applied, Duffy v HM Advocate2015 SCCR 205commented upon and Thomson v HM Advocate1986 SLT 281 and Donnelly v HM Advocate2018 SLT 13referred to.
The cause called before the High Court of Justiciary, comprising the Lord Justice General (Carloway), Lord Malcolm and Lord Pentland, for a hearing, on 1 July 2021.
Eo die, the court refused the appeal for the reasons set forth in the opinion of the Court which was subsequently delivered by the Lord Justice General (Carloway)—
Opinion of the Court—
[1] On 22 October 2020, at the High Court in Edinburgh, the appellant was convicted, by the unanimous verdict of the jury, of murdering Andrew McCarron on 21 July 2019 by stabbing him in the neck. He was sentenced to imprisonment for life, with a punishment part of 18 years.
[2] The appeal is about whether the trial judge erred in withdrawing provocation from the jury. It also raises a question about the displaying of horrific images to jurors and others.
[3] The appellant was formerly married to Nicola Johnstone, from whom he had separated in September 2017. She later formed a relationship with Jamie Bell. Between April and July 2019, a number of phone calls and text messages were exchanged between the appellant and Ms Johnstone, in which the appellant threatened to assault and kill Mr Bell.
[4] Mr Bell's mother, Catherine, was in a relationship with Andrew McCarron, the deceased, who was known as ‘Rugger’. The Bell family were frequent attenders at Edinburgh City Football Club. The appellant lived in Sleigh Drive; a few minutes walk away. On the date in the libel, the Bell family and...
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