The High Court of Justiciary has refused an appeal against conviction made by a man who was sentenced in 2019 to life imprisonment. Paul Smith was convicted for murdering the partner of his ex-wife’s new boyfriend’s mother. 
It was argued that at trial the judge had failed by removing the defence of provocation from the jury’s deliberations. There was also consideration of the graphic images which were put before the jury. 
The appellant separated from his wife, Nicole Johnstone, in 2017 and she formed a relationship with a man named Jamie Bell. In 2019 the appellant contacted Ms Johnstone via telephone and threatened to kill Mr Bell. At the time Mr Bell’s Mother was in a relationship with the deceased. 
On 21 July 2019 the deceased alongside his family were socialising in Edinburgh. When the appellant arrived a confrontation arose between the appellant and the deceased. This led to the appellant stabbing the deceased on the neck. This was recorded on a mobile phone  by a bystander and shown to the jury at trial. 
At trial the judge considered there to be no basis for provocation as the appellant could not have reasonably believed he was about to be assaulted. It was submitted at appeal that withdrawing provocation from the jury was a miscarriage of justice. It was argued that the abuse the appellant had been subjected to was clear from the video recording. 
Lord Carloway delivered the opinion of the appeal court and stated that the assertion that the appellant believed he was about to be attacked ‘had no foundation in the evidence’. Further to this, it was considered that ‘even if there had been evidence of loss of self control and instant retaliation in hot blood, the violence used was grossly disproportionate’. The requirements for provocation could not be satisfied. 
On this basis Mr Smith’s appeal was refused.