Paul Stuart Smith v. Her Majesty’s Advocate [2021] HCJAC 35

Note of appeal against conviction:- On 22 October 2020, following a trial at Edinburgh High Court, the appellant was convicted of a charge of murder. He was sentenced to imprisonment for life, with a punishment part of 18 years. The appellant appealed against his conviction on the ground that the trial judge erred in withdrawing provocation from the jury. In addition, the appeal raised an issue in relation to the appropriateness of displaying graphic images during the trial. The circumstances were that the appellant’s former partner was going out with the deceased at the time of the incident. The deceased offered to fight the appellant and offered hm a ‘square-go’. The appellant said that he did not want to fight with him. The deceased threatened to kill the appellant, but the appellant repeated that he had no interest in fighting him. The deceased then said to the appellant in an aggressive voice “what have you got, what have you got?” at which point the appellant raised his right arm, placed his left hand around the back of the deceased’s neck, and stabbed him to the left side of the neck, saying, “That”. The wound was 15.5cm deep and cut through multiple blood vessels and resulted in his death. The appellant was arrested following which he made various admissions that he had stabbed and killed somebody and that he had murdered somebody. The appellant did not give evidence at trial. Here it was submitted on behalf of the appellant that the trial judge erred in removing provocation from the jury and that amounted to a miscarriage of justice. There was, it was submitted, evidence available to the jury to enable them to conclude that, immediately before the fatal blow was inflicted, the appellant had been subject to an assault by menaces/verbal insult following which he had immediately lost his temper and self-control and had retaliated instantly in hot blood with broadly equivalent violence to the threatened violence he had faced. It was further submitted that the trial judge failed to take into account the footage/audio played to the jury and it was open to them to listen to the audio and come to their own conclusions about what had been said, notwithstanding what had been agreed by parties about what had been said in a joint minute. The verdict of culpable homicide should only be withdrawn from the jury where there was no basis for it and only if the court concluded that no reasonable jury could reach the view that there was provocation should directions be omitted and this was not such a case. On behalf of the Crown it was submitted that directions on provocation were only required if the jury might reasonably find the necessary elements made out, namely, that the appellant had been physically attacked, had lost his self-control immediately and retaliated instantly in hot blood and the violence was not grossly disproportionate to the provocation. Here the court refused the appeal. The court reiterated the requirements for provocation to be available to a jury for their consideration:- (1) the accused must have been attacked physically; (2) he must have lost his self-control immediately; (3) he must have retaliated instantly and in hot blood, without time to think; and (4) the violence used by the accused must not be grossly disproportionate to that which he faced. The court stated that these elements have can overlap and should not be looked at in isolation and if there is evidence capable of supporting each of the four elements, then an alternative verdict of culpable homicide based upon provocation should be available to the jury. In relation to the present case the court reiterated that verbal abuse alone cannot constitute provocation and provocative actings must be substantial which they were not in the present case. Furthermore, there was no evidential basis to enable the jury to hold that any of the remaining three elements were present. As a postscript the court reminded those involved in trials of the great care that should be taken when horrific footage is available and the impact the playing of it it might have on jurors. The court stated that where it is considered necessary for such images to be led in evidence the matter should be raised at the Preliminary Hearing to ensure that agreement can be reached in relation to the manner in which it can be most sensitively done.