Court of Appeal in Northern Ireland Decisions

Factual background

"Roy Hillen was a well-known member of the Belfast Homeless Community. He was an alcoholic who spent most of his time begging and drinking on the streets of Belfast. The accused was an acquaintance of Mr Hillen and lived a similar lifestyle.

On Saturday, 2^nd September 2006 Mr Hillen had taken up a position on the steps of the Ulster Hall, Bedford Street, Belfast. He was accompanied by Elaine Hunter, both were drinking cider and vodka. Shortly after 6.00pm the deceased observed the defendant begging on the opposite side of the roadway. Angered by what he perceived to be someone begging on `his patch' he crossed the roadway and punched the defendant once on the face. The defendant retaliated by punching Mr Hillen several times. By themselves, these blows appear to have been of moderate severity. However, when combined with the intoxicated condition of Mr Hillen, they caused him to either strike his head upon a wall or on the ground.

Constable Buch arrived on the scene at 6.10 pm. He observed that the deceased had returned to the entrance of the Ulster Hall. He further observed that Mr Hillen was heavily intoxicated and abusive. He then crossed Bedford Street and spoke to the defendant who was holding a red coloured jumper up to the bleeding nose. Both the defendant and Mr Hillen declined to make any statement of complaint.

Ambulance men who arrived minutes later were unable to identify any obvious injuries to Mr Hillen's face. After initial refusal Mr Hillen agreed to accompany the ambulance crew to hospital. The defendant also left the scene.

Mr Hillen was later admitted to the Regional Intensive Care Unit at 4.30 am the following day. This followed the removal of an acute subdural haematoma. Thereafter his condition deteriorated and he died at 6.27 pm on 6 September 2006."

The grounds of appeal

(1) The result of a simple collapse, trip or fall whilst intoxicated.

(2) A sudden collapse following an epileptiform seizure.

(3) Some form of assault by a third party.

In relation to the third possibility, Dr Cromie expressed the view that any force might have been minimal taking into account the significantly intoxicated, unsteady condition of the deceased and he noted that post-mortem photographs of the deceased revealed only relatively minor facial injuries. Dr Cromie also noted the deceased's persistently low blood platelet count which would have rendered him unduly susceptible to traumatic bleeding and would have magnified the effect of any blunt trauma.

(i) In R v Quinn the court reached a conclusion that the deceased had not offered any provocation whatsoever and was not expecting to be struck at the time of the assault. He was wholly unprepared for the attack and not in a position to defend himself. Furthermore the court specifically recorded that the assailant knew that his victim was unprepared and should have been aware that a blow inflicted in such circumstances could have felled his victim thereby causing further injury. The court was satisfied that the accused had deliberately sought out and targeted his victim for attack and conceived an intention to assault him some little time before the attack took place. His actions were condemned as callous and cowardly. By contrast, it was accepted by both sides that, in this case, it was the deceased who crossed the road and deliberately struck the applicant subjecting him to abuse. Having done so it is likely that, even in his intoxicated condition, he must have anticipated some reaction. While it seems clear that the applicant over-reacted, this Court considers that it is a matter of some importance that he was not in any way responsible for the initiation of this incident.

(ii) While the applicant undoubtedly struck Mr Hillen a number of blows, the prosecution accepted that these were of moderate severity and, therefore, to be contrasted with the conclusion of this Court in the Quinn case, that the accused had intended to and did strike the deceased with considerable force.

(iii) In the Quinn case one of the possible aggravating factors identified by this Court was the occurrence of the assault in a public place. As we have already pointed out, the fact that the assault in this case took place in similar circumstances was, in practical terms, not of the applicant's choosing.

(iv) In both Quinn and in the instant case, the assailants were intoxicated at the time of the offence. The excessive consumption of alcohol is a depressing but regular feature in the commission of violent offences but experience suggests that its role may vary considerably with the nature of the offence/offences and the particular circumstances. In R v Quinn the accused was of good character without any criminal record and the court in that case noted that there was no evidence that his intoxicated state had made it more likely that he would attack the deceased, adding that such evidence should normally be present before the taking of alcohol should be regarded as an aggravating factor. In the instant case, contrary to the suggestion by Mr McCartney QC, the applicant does have previous convictions for assault and disorderly behaviour almost certainly associated with the consumption of alcohol. In all, these seem to total some 5 instances over a 25-year period. The learned trial judge in this case stated in the course of his sentencing remarks:

"Your consumption of alcohol on this occasion made it more likely that you would attack your victim and that you were not in a position to limit that attack. At the very least your intoxicated state made it more likely that you would inflict numerous and sustained punches upon your victim. I take into account that you are addicted to alcohol but in the circumstances of this case, and in view of the role played by the alcohol in the incident, I consider that your consumption of alcohol is an aggravating feature in your case."

There is absolutely no doubt that excessive consumption of alcohol remains a serious and growing problem within this jurisdiction but we consider that a distinction may be made between the aggressive, and generally younger, binge drinker who indulges in excessive consumption thereby fuelling his or her aggression and the long-term alcoholic whose condition impairs his ability to react to and defend himself against an attack. However, it should not be thought that in making this observation in the context of the specific circumstances of this particular case, this Court is in any way intending to downgrade the serious level of physical violence that appears to be inherent in and permeate through relationships between those who are addicted to alcohol.