Scottish High Court of Justiciary Decisons

LORD STRACHAN .—… Before you could find that the accused was justified in killing Ormiston you would have to be satisfied that he struck the fatal blow for his own protection and to ward off danger to himself, either danger which was actually threatened or danger which might reasonably be anticipated by him. It would not be necessary to find that there was actual danger to the accused; you could uphold the special defence, subject to what I am going to say in a moment, if you were satisfied that the accused believed that he was in danger and if you were also satisfied that he had reasonable grounds for so thinking. Speaking generally, homicide will not be justified by self-defence unless it is committed of necessity in the just apprehension on the part of the killer that he cannot otherwise save his own life. That is a general statement. I am now going to deal more particularly with some conditions which are necessary for a successful defence upon this ground; I am not going to deal with all the conditions that are necessary, but I mention one or two which may seem to give rise to difficulty in this case.

In the first place, a homicidal act, that is the actings of the accused, must have been done in order to save his own life. Mr Maxwell has asked me to give you a direction that if you found that the injuries were inflicted by the accused in the course of resisting an attempt to commit sodomy on him the homicide would be justified. I am not prepared to give you that direction. Homicide is justified by self-defence only if the homicidal acts are done to save the man's own life.

It does not bring the accused within the plea of self-defence if he kills to avoid some great indignity, some attack upon his virtue, or even some bodily harm. …

… You must also consider another matter: whether in this case you would find the accused guilty only of assault. That point has been put to me by Mr Maxwell, and I have to direct you that it would be competent for you under this indictment, should you think of going so far, to find the accused guilty only of assault. You see, the charge which I read to you begins with the words that the accused did, on the date and at the place in question, assault Andrew Ormiston, and it would be competent for you, if you saw sufficient grounds for doing so, to find him guilty only of that part of the charge against him. But that, of course, could be done only if you saw adequate reason for disregarding the fact that the accused killed Ormiston, if you are satisfied that the killing is proved against him. I put this matter before you. I merely say that I think you should give very careful consideration to the position before you went so far as that. …

The jury found the panel guilty of culpable homicide and he was sentenced to seven years' imprisonment.

The panel appealed against his conviction on the ground, inter alia, "That the Judge failed to direct the jury that a forcible attempt to commit sodomy could justify the assaulted in taking the assailant's life in self-defence."

The appeal was heard before the High Court of Justiciary on 24th February 1959.

LORD JUSTICE-GENERAL (Clyde).—The applicant in this case, Matthew M'Cluskey, was charged with assaulting Andrew Ormiston in a room occupied by the applicant in Glasgow and murdering him. The jury found M'Cluskey guilty of culpable homicide, no doubt upon the ground of provocation. He desires to appeal against his conviction on the ground that there were several misdirections by the presiding Judge in the course of his charge. Ormiston's death followed upon a quarrel between him and M'Cluskey in the room where the two men had spent the evening drinking. The injuries to Ormiston were very severe involving many external injuries with a bottle, a fracture of the skull, a fracture of the jaw, and a fracture or displacement of bones in the face and neck. Ormiston died in consequence of these injuries. M'Cluskey sustained only superficial cuts. A special plea of self-defence was lodged prior to the trial.

The first question for this Court arises in regard to the ambit in the law of Scotland of a plea of self-defence. It is contended for the accused that the learned Judge at the trial misdirected the jury in

directing them as a matter of law that homicide in this case could only be justified by self-defence if the homicidal act was done by M'Cluskey to save his own life.

It is, of course, well settled that while a defence of provocation may reduce the crime of murder to culpable homicide, a plea of self-defence, if made out, is a complete answer to a charge of murder and would lead to a verdict of not guilty. Our law has always held that if there are reasonable grounds for a person apprehending that his life is in danger he is entitled to protect himself, provided that the steps which he takes are not in the circumstances cruelly excessive. In such circumstances he will not be guilty of murder. In the present case it is argued that although M'Cluskey had no grounds for thinking that his life was in any way in danger, a forcible attempt was made by Ormiston to commit sodomy with him, and this was such as to justify M'Cluskey in defending himself to the extent of taking Ormiston's life. The basis for this extension of the doctrine of self-defence, is, as I follow it, that an attack on the appellant's virtue is as much a justification for taking another man's life as an attack upon his life would have been. No authority was quoted for this extension of the plea of self-defence and I can see no logical nor indeed any other justification for it. Murder is still one of the most serious crimes in this country, for no man has a right at his own hand deliberately to take the life of another. Indeed it is because of this principle of the sanctity of human life that the plea of self-defence arises. Just because life is so precious to all of us, so our law recognises that an accused man may be found not guilty, even of the serious crime of murder, if his own life has been endangered by an assailant, or if he has reasonable grounds for apprehending such danger, and if the steps which he takes to protect his life are not excessive, although they have led to fatal consequences. But I can see no justification at all for extending this defence to a case where there is no apprehension of danger to the accused's life, and indeed, very little evidence of any real physical injury done to the accused himself, but merely a threat, pushed no doubt quite far, but none the less still only a threat, of an attack on the appellant's virtue. Dishonour, it is suggested, may be worse than death. But there are many ways of avoiding dishonour without having to resort to the taking of a human life, and, so far as I am concerned, I do not see how the taking of a human life can ever be justified by the mere fact that there have been threats of dishonour or indignities or even of some bodily harm, which falls short of creating reasonable apprehension of danger to life. Indeed this seems to be recognised in the authorities quoted to us. In Alison's Criminal Law, vol. i, p. 132, the learned author says:—

"A private individual will be justified in killing in defence of his life against imminent danger, of the lives of others connected with him from similar peril, or a woman or her friends in resisting an attempt at rape."

It seems to me impossible to assimilate the present case to a woman threatened with rape. For rape involves complete absence of consent on the part of the woman. This is not the situation in sodomy. Hume on Crime, vol. i, p. 223, says:—

"The general notion of homicide in self-defence is, that it is committed from necessity; in the just apprehension, on the part of the manslayer, that he cannot otherwise save his own life, and without alloy of any other excusable motive."

The decisions of the Court do not advance the matter since the point has not really arisen in any of them. The case of Hillan v. H. M. Advocate is of no assistance on the present issue since the observations in that case relate to provocation and not self-defence. This is made clear in the subsequent case of Crawford v. H. M. Advocate, perLord Keith at p. 71.

In my view, therefore, where an attack by an accused person on another man has taken place and where the object of the attack has been to ward off an assault upon him it is essential that the attack should be made to save the accused's life before the plea of self-defence can succeed. For myself, I would be slow indeed to suggest that people in this country are justified in taking human life merely because their honour is assailed by someone else. It would be a retrograde step if we were to widen the scope of self-defence so as to enable an accused person to escape altogether in such circumstances. In my view, therefore, the direction given by the learned Judge to which exception is taken was a sound direction, and this ground of appeal is without substance. [His Lordship then dealt with matters with which this report is not concerned.]

LORD RUSSELL .—I am of the same opinion and have little to add. It is trite law that a person charged with murder is entitled to plead that when he caused the death of his victim he was acting in self-defence. If facts and circumstances support that plea he is entitled to be acquitted, since it will have been shown that the killing with which he was charged was justifiable homicide. To support such a plea, however, it must be shown (firstly) that the acts done by the accused, which caused the victim's death, were done to save his own life; (secondly) that killing in the circumstances was really necessary in order to achieve that object, there being no other means of escaping from the danger; and (thirdly) that he has not used cruel excess in retaliating or in resisting the acts threatening his life. In the present case it is conceded by counsel for the appellant that the accused was not in any danger of his life at the time when the injuries were inflicted upon the victim; but it is said that he was in a position in which danger to his honour or to his personal virtue was being threatened, by the suggestion, and by the reprehensible steps made by the victim to carry out the suggestion. In my opinion, there is neither precedent nor authority to support the view that danger of that kind threatened to anyone entitles him to use extreme violence to the extent of killing, and thereafter to claim that that killing was justifiable as having been done in self-defence. I need say no more, being

in complete agreement with the view expressed by your Lordship on all points raised in this appeal.

LORD MACKINTOSH .—I agree with your Lordships. I think that the trial Judge took the right course in refusing to direct the jury on the lines on which he was invited by the appellant's counsel to do. I think that if such a direction had been given, it would have extended the scope of our law with regard to justifiable homicide much further than so far it has ever gone, and would have carried it beyond what would be expedient in the public interest.