High Court refuses appeal against conviction by man who murdered family member of ex-wife’s new partner

Paul Smith argued that the trial judge had erred in withdrawing the defence of provocation from the jury’s consideration. The case also raised questions about the showing of graphic images to jurors.

The appeal was heard by the Lord Justice General, Lord Carloway, sitting with Lord Malcolm and Lord Pentland. The appellant was represented by Mackintosh QC and the Crown by R Dunlop QC.

No evidence of thinking

The appellant had separated from his wife, Nicola Johnstone, in 2017. She later formed a relationship with another man, Jamie Bell, and during the spring and summer of 2019 the appellant and Ms Johnstone had a number of telephone exchanges in which he threatened to kill him. Mr Bell’s mother, Catherine, was in a relationship with the deceased.

On 21 July 2019 the Bell family, including the deceased, were drinking at the Edinburgh City Football Club. The appellant arrived at the club after having been out drinking with a friend in the city centre after 11pm and had encountered Mr Bell smoking outside the Club. After an exchange of words, the deceased and several others came out of the club. He ordered everyone away from the appellant and offered to fight him “square now”.

After the appellant said he did not want to fight the deceased, he replied in an aggressive tone asking him “What have you got?”, to which the appellant replied by stabbing him in the left side of the neck with a kitchen knife. The wound cut through multiple blood vessels and proved fatal. The incident was captured by a bystander, who recorded a video of it on his phone that was later viewed by the jury at trial.

The trial judge raised the question of provocation at the conclusion of the evidence, at which the appellant did not testify. The appellant’s trial counsel submitted that he had reasonably believed he was about to be assaulted and acted immediately in response to that threat. The judge did not consider it was open to the jury to conclude that the requirement of provocation had been met, as there was no objective basis for the appellant thinking he was about to be attacked and no evidence of what he was thinking or if he lost self-control.

It was submitted for the appellant that removing provocation from the jury amounted to a miscarriage of justice. There was sufficient evidence for the jury to conclude that the appellant had been subject to an assault by “menaces” or verbal abuse. This was supported by the recording of the incident, which the judge had failed to take into account the value of, which showed the appellant being threatened by a significantly larger man, potentially backed by a hostile crowd.

No foundation

Delivering the opinion of the court, Lord Carloway began: “It is correct to say that, once images of an incident have been displayed in court, it is for the jury to make of them what they will. The same applies to an appellate court when entertaining an appeal of the nature advanced here.”

Examining whether the elements of provocation were present in detail, he said: “The appellant did not give evidence, so there was nothing to suggest that he lost his self-control immediately, retaliated instantly and in hot blood. His solicitor advocate’s assertions, that the appellant had thought that he was about to be attacked, had ‘lost it’ and acted in response to threats, had no foundation in the evidence.”

He continued: “Even if there had been evidence of loss of self-control and instant retaliation in hot blood, the violence used was on any view grossly disproportionate to the threat offered.”

Lord Carloway concluded: “The appellant had gone out armed with a large knife to the Club, which he knew would be frequented by the Bells, including Mr Bell, whom he had previously threatened to kill. On being confronted by the deceased, the appellant deliberately used the knife, which he had concealed, to stab the deceased in a highly vulnerable part of his body simply in answer to a question, albeit aggressively put: ‘What have you got’. No jury could have regarded such a reaction as other than grossly disproportionate.”

For these reasons, the appeal was refused.

Great care when showing images

In a postscript concerning the use of the phone evidence, Lord Carloway noted: “The images of the murder of the deceased as recorded on the mobile phone were horrific; showing in graphic terms the stabbing of the deceased and its fatal aftermath. Great care must be taken by both prosecution and defence when deciding whether it is necessary to show such images to members of the jury, and to others in the court room.”

He continued: “Whether that was necessary and whether it was necessary to show the aftermath at all is doubtful. It is understandable that, faced with a plea of provocation, the Crown will reasonably deem it necessary to show the images to the jurors. The manner in which that should be done ought, in the future, to be the subject of a considered case management decision.”