Andrew Gillon v. Her Majesty's Advocate [2006] HCJAC 61

On 15 May 1998 the appellant was found guilty by a majority verdict on the following charge:- "(5) on 13 January 1998, in a lane between 36 and 38 Balbardie Crescent, Bathgate, you did assault Gary George Allan Johnstone, aged 25 years, 77 Balbardie Avenue, Bathgate and strike him repeatedly on the head, face and body with a spade and you did murder him and you did previously evince malice and ill-will towards him." The appellant was sentenced to life imprisonment, to run from 13 January 1998. On 7 October 2002, a punishment part of 14 years was fixed under section 2(2) of the Prisoners and Criminal Proceedings (Scotland) Act 1993, as amended. On 14 February 2005, the appellant lodged a note of appeal against conviction containing a number of grounds including inter alia criticisms of the trial judge's charge in relation to provocation. A bench of 5 judges convened to consider:- (1) In regard to provocation by violence generally, is there a rule of law requiring a reasonably proportionate relationship between the provocative conduct and the reaction of the accused? and (2) If not, by what standard should the conduct of the accused be considered? The court here considered whether there should be an alteration to the criterion of reasonable proportionality which is currently applied in relation to provocation in the context of violence, or, whether the different tests for provocation the courts apply, in relation to cases of violence and cases where a spouse discovers sexual infidelity, should remain.