Woman convicted of attempted murder loses appeal over ‘provocation’ claim

Lord Carloway
Lord Carloway

A woman found guilty of attempted murder who claimed that the trial judge misdirected the jury by failing to give directions on provocation has had her appeal against conviction rejected.

The Appeal Court of the High Court of Justiciary ruled that, where the accused’s defence was that she was not involved in the assault in question, even though it was argued on appeal that part of her police statement gave rise to an inference of provocation, there was no requirement to give directions on provocation.

The Lord Justice General, Lord Carloway, sitting with Lord Menzies and Lord Turnbull, heard that the appellant Ashley Duncan was sentenced to six years’ imprisonment, having been convicted along with Lee Hutchison and Matthew Donaldson of assault to severe injury, permanent disfigurement and danger of life, and the attempted murder of Jordan Jones.


At trial the court heard evidence that there had been a “background of animosity” between the complainer and one of the co-accused, Lee Hutchison, arising out of their respective relationships with a woman named Amy Spalding.

There had been “play fighting” in the kitchen of Ms Spalding’s flat between the complainer and the two male accused, which had grown aggressive but had then calmed down. 

The complainer went into the living room, where he lay down on a sofa and fell asleep.

The two male accused then came into the living room from the kitchen and began attacking the complainer as he lay on the sofa, and the appellant joined in by punching and kicking him, before all three ran out of the flat.

The appellant gave what the trial judge described as “mixed and often contradictory” statements to the police about the nature and extent of her involvement in the attack.

En route to the police station after the incident, the appellant had said that, after the complainer had appeared at the locus with a knife, she had jumped in and started fighting with him and this was when it had all “kicked off”.

But after being cautioned and charged she claimed she had not touched him.


The defence position for each accused - none of whom gave evidence - was that the jury should not believe or rely on the eyewitnesses or alternatively that their evidence should leave the jury with a reasonable doubt about whether the accused were involved.

The judge took the view that the evidence painted a “clear picture” of events leading up to the assault and a gap during which things had calmed down, and that the attack was only launched after the complainer had fallen asleep.

Accordingly, there was “no basis” for a plea of provocation and “no hint” of it being an issue during the course of the trial, as any interaction between the complainer and the appellant had been some time before the attack.

However, on appeal, it was argued that the jury would have been entitled to find, on the basis of some of the appellant’s statements, that she had been attacked and had “lost her temper and self control and retaliated instantly and in hot blood”.

Her retaliation, it was said, would have been regarded as “broadly equivalent and proportionate” to the violence which she had faced.

In these circumstances, it was argued, the judge had been “obliged” to direct them on provocation. 

Only if the judge had been able to conclude that no reasonable jury could, on the evidence of what the appellant had said, find provocation established, should directions on provocation have been omitted, it was submitted.

No misdirection by omission

Refusing the appeal, the judges referred to authorities which set out the principle that there is “normally no requirement for a judge to introduce an alternative or lesser verdict” where neither party has addressed the jury on the matter.

Delivering the opinion of the court, Lord Carloway said: “The fundamental principle applicable, when charging a jury in respect of alternative verdicts, is that, as a generality, the trial judge is only required to direct a jury on the issues which are live at the trial.

“The general principle is that the obligation on the trial judge is to charge on verdicts in accordance with the manner in which the case has been presented to the jury by the parties.

“The judge should not speculate or embark upon areas of possible alternative verdicts which have neither been canvassed in the evidence nor formed part of the speeches to the jury. The judge ought not to present an alternative verdict, which has not been canvassed by the parties, unless the prospect of that verdict is an obvious one…

“The principle is based upon that of fairness. It follows that there is an exception where, on the contrary, a direction on an alternative is required as a matter of fairness.”

Lord Carloway added: “Applying this principle to the present case, the parties did not, in their addresses to the jury, raise the prospect of a verdict of assault only, based upon provocation. 

“There was no need for the trial judge to do so unless that alternative verdict was an obvious one on the evidence, such that the public interest necessitated that the direction be given, notwithstanding any unfairness which might thereby ensue.

“The evidence founded upon by the appellant in the appeal was the content of her statements to the police. Had this obviously raised provocation as a trigger for the appellant participating in an attack on the complainer as he lay on the sofa, it may be that the judge ought to have given the direction. 

“It did not. Rather, if anything, any element of provocation related to an earlier episode, after which matters had calmed down. Any earlier violence had no immediate relationship to the attack on the sofa.”

He concluded: “In presenting the defence case, the appellant’s position was to the effect that the evidence was so incredible or unreliable that the jury ought not to be satisfied that the appellant had participated in the assault; not that she had done so under provocation. 

“In that situation, had the judge given the direction, it would have had to have proceeded on a hypothesis that the appellant had participated in the attack. Such a direction would have had the potential to undermine the defence position as put to the jury. It certainly did not require to be given as a matter of fairness.”

© Scottish Legal News Ltd 2021

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