Murderer’s ‘third party provocation’ defence rejected by appeal judges

The Appeal Court of the High Court of Justiciary ruled that the appellant’s plea of “third party provocation” could never have succeeded given the circumstances of this homicide case.

The Lord Justice Clerk, Lady Dorrian (pictured), sitting with Lord Menzies and Lord Turnbull, heard that the appellant Nico Donnelly was sentenced to life imprisonment with a punishment part of 20 years after being convicted of murdering Jamie Johnstone by repeatedly striking him with a knife.

‘Self-defence of another’

At trial he had lodged a notice of self-defence of another, Cameron Ferguson, on the basis that he had acted under “reasonable apprehension” that the deceased was about to attack Ferguson with a bottle.

The defence position was that the knife had been produced and presented in apprehension that the deceased was going to attack Ferguson, but that the killing was accidental - thus it was not a special defence of self-defence in relation to the charge facing the accused, but an explanation the reason for the presentation of the knife.

The first ground related to alleged “inadequate directions” by the trial judge on self-defence in defence of another.

But the appeal judges considered that, given that the actual defence was one of accident rather than self-defence of another, the directions given by the trial judge were “perfectly adequate”.

“On one view, it was generous to give these directions”, Lady Dorrian said.

‘Third party provocation’

The second ground related to the question of provocation.

The trial judge addressed the potential for provocation to arise should the jury conclude that the appellant had been assaulted by the deceased.

However, the solicitor advocate for the appellant John Scott QC argued that he should have gone further and directed the jury that provocation could also arise in relation to the acts of the deceased towards a third party.

The trial judge directed that “provocation can arise only in certain circumstances – broadly where the accused has been the subject of a physical attack,” but it was submitted that there were “clear exceptions to the rule” and a number of authorities were cited.

On behalf of the Crown, the position adopted by the Lord Advocate James Wolffe QC was that, in the light of the authorities referred to, it would be going too far to say that, regardless of how compelling the circumstances may be, violence directed against a third party in the presence of the accused can never amount to provocation such as to support the conclusion that the accused was guilty of culpable homicide rather than murder.

Appellant’s plea ‘could never have succeeded’

Refusing the appeal, the judges noted that self-defence and provocation were “entirely different” as the former was a “substantive defence” resulting in acquittal and the latter was a plea which may provide only “an excuse” for he way an accused has acted.

The court held that it was too “simplistic” to argue that since it had long been accepted in Scotland that self-defence extended to third parties, a plea of provocation would be “an obvious extension of self-defence”.

Delivering the opinion of the court, the Lord Justice Clerk said: “In all the cases relied on for supporting a tacit approval of third party provocation, 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 I’m defining its limits.

“One of the difficulties which we have found in addressing the wider issues in the context of the present case is that we agree entirely with the Lord Advocate that this is not a case in which any plea of third party provocation, assuming its availability, could ever have succeeded. 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…There was no evidence of any loss of control on the part of the appellant and his actions could never meet the test of proportionality.”

She added: “On the facts of the present case, the plea in terms raised in the grounds of appeal could never have succeeded and the appeal must be refused.”

It was also submitted that the punishment part of 20 years was “excessive” taking into account of all the relevant circumstances of the incident and the fact he had expressed remorse, but the judges noted the aggravating factors and his previous convictions for violence.

Lady Dorrian said: “In circumstances where an appellant, with a bad record of violence including prior use of a knife or similar object, stabbed the deceased twice in the centre of the chest with a knife which he had taken with him, it cannot be said that the punishment part imposed by the trial judge was excessive.”