Scottish High Court of Justiciary Decisons

At advising on 3rd May 1985,—

LORD CAMERON .—The appellant in this case was convicted by a majority verdict on two charges on indictment, the first of theft and the second of murder, in the High Court in Edinburgh on 20th November 1984. The present appeal relates to conviction on the second charge only. The crime was committed at Threipmuir reservoir near to the Black Spring watershed, where it was alleged that he struck one Paterson on the head several times with an air rifle or similar object, seized hold of him by the head and struck his head and face repeatedly against a stone and murdered him. To this indictment the appellant pled not guilty, and also lodged a special defence of self-defence in the usual form. That special defence was supported in evidence by the appellant.

[His Lordship narrated the detailed facts of the case as set out in the report of the trial judge and continued.]

In the course of his charge the learned judge proceeded to give the jury directions both on the meaning of "self-defence" and on the required elements necessary to make good that defence to a charge of murder, and also on the meaning and effect of the entirely different plea of provocation when put forward to meet a charge of murder. In drawing the jury's attention at an early stage in his charge to the distinction in law between acts constituting the crime of murder and those upon which a verdict of culpable homicide could be based the presiding judge did so in terms which, while perhaps less lucid than they might have been, were at least sufficient to point the distinction between the essential elements of the two crimes and the quality of the criminal intent necessary to constitute the crime of murder.

In dealing with the substantive defence of self-defence the judge said this:

"A special defence can only apply if the accused's own life has been put in danger or if he has reasonable grounds for apprehending such a danger, in other words, there must be imminent danger to life and furthermore the actings of the accused must be necessary and, if he has a means of escape from the attacker, the plea of self defence simply will not do. And lastly ladies and gentlemen there must be no cruel excess of violence on the accused's part. If he goes further than is necessary for his defence and uses cruel excess that cannot in law constitute self defence. So you have to fit the facts of the case into the definition that I have just given you."

It is to be observed that in this passage the judge emphasised "there must be no cruel excess of violence on the accused's part". It is only towards the end of his charge that the presiding judge deals specifically with the separate question of the possible effect of provocation as reducing the quality of the homicide from murder to culpable homicide; but he indicated that the jury "have to be satisfied that the conduct of the deceased was so violent and threatening so as to cause the accused to temporary (sic) lose his self control so that he lashed out, as it were, without thinking what he was doing" before they could return a verdict of culpable homicide (judge's charge, p. 19).

For the appellant, two separate and independent grounds of appeal have been stated, the first to the effect that:

"The presiding judge failed properly to direct the jury that even if they were not satisfied the appellant had acted in self-defence, they could nevertheless find the appellant guilty of the lesser crime of culpable homicide if they considered that, while in a state of danger, the appellant had used unnecessary violence or continued to use violence after the danger had passed, but did so in the heat of the moment without any intention to kill and without thinking of the consequences."

The second ground is brief and to the effect that:

"The presiding judge failed to direct the jury that in considering the plea of self-defence they should make some allowance for the excitement or state of fear or the heat of blood at the moment of attack upon the appellant by the deceased, if, that is, they were satisfied such an attack had been made."

In support of the appeal counsel for the appellant first submitted that in essence both grounds related to the special defence lodged by the appellant—self-defence. He complained that the presiding judge failed to direct the jury that they must not weigh the evidence bearing on self-defence "in too fine scales", that he failed to direct them "to make allowance for heat of blood or fear". These omissions were unfortunate and serious because the deceased was known to be a man of violence with previous convictions and particularly when, as here, on the evidence he had taken drink. In this case in particular, the omission to give these directions amounted to serious misdirection fatal to the conviction, because the jury could be confused into thinking that, if the violence used by the appellant exceeded what was reasonable or necessary, the murder would have been committed. The proper direction in this case in particular should have followed the lines of that given by Lord Keith in H.M. Advocate v. Doherty 1954 JC 1. Further and in respect of his other ground of appeal, counsel for the appellant submitted, while it was true that the presiding judge dealt with the matter of self-defence, he wholly failed to deal with the possible reduction of the charge in this context from one of murder to one of culpable homicide. This should have been done, as in the case of H.M. Advocate v. Kizileviczius 1938 J.C. 60. This omission took a most important matter out of the hands of the jury and amounted to a serious misdirection; on either or both of the grounds of appeal presented the appeal should be allowed.

For the Crown, the learned advocate-depute maintained that the presiding judge's charge, properly considered in its context, was adequate and sufficiently dealt with the only questions of law in issue. A charge was not to be examined as an academic exercise nor was it necessary for a judge to give a full exposition of the law of homicide. In the present case the possibilities for consideration by the jury were these: (1) intentional killing or such a degree of wicked recklessness as to be equivalent to an intent to kill; (2) homicide without intent to kill or while acting under a sufficient degree of provocation or (3) killing justified as being in self-defence, the burden of proof to establish either murder or culpable homicide being always on the Crown. All these matters were adequately dealt with by the presiding judge. The appellant's complaint in his second ground of appeal was without foundation. The reference to "cruel excess" was precise and accurate: there was no necessity to go further or to seek to illustrate the meaning of the words. Reference to Hume on Crimes, i. 228 and 229 made it clear enough that it was "excess" of violence in defence against an assault which took away the protection which the plea of self-defence would otherwise afford. The presiding judge gave the direction in plain terms, and that would suffice. There were no special circumstances here which required more: it was not necessary that the language used in H.M. Advocate v. Doherty by Lord Keith should become a stereotyped pattern, the use of which was mandatory and the omission of which amounted to misdirection. This was enough to dispose of the second ground of appeal. As regards the first it was clear that this was based upon one passage in the charge of Lord Jamieson in H.M. Advocate v. Kizileviczius . That passage however could not stand beside the judgment of Lord Justice-General Cooper in Crawford v. H.M. Advocate 1950 J.C. 67, in which he said this at p. 69:

"Exculpation is always the sole function of the special defence of self-defence. Provocation and self-defence are often coupled in a special defence, and often I fear confused; but provocation is not a special defence and is always available to an accused person without a special plea."

In the present case the presiding judge had properly kept these two matters entirely separate in his charge, and had not made the error of endeavouring to conflate the two. The whole basis of the first ground of appeal was therefore unsound and the appeal should be refused.

As is plain from the judge's charge, the defence was presented on two separate and independent grounds. The appellant pleaded self-defence, and also submitted to the jury that, even if the special defence of self-defence failed, a verdict of culpable homicide should be returned on the ground of "provocation". As was pointed out by Lord Justice-General Cooper in the case of Crawford v. H.M. Advocate a very clear distinction must be drawn between the two, the one being a "special defence" and the other a plea—in essence a plea in mitigation not of sentence, but of the degree of the accused's guilt. I refer to, without repeating, the passage in Lord Cooper's judgment quoted by the advocate-depute. Consequently, it is a plea which can only properly arise for consideration once the jury have reached a conclusion on the "special defence" and rejected it. Once that decision has been made, then and only then, does the plea of "provocation" become legitimate matter for consideration, and in considering that plea it is for the jury to consider, of new, in light of the directions given by the presiding judge, the whole evidence bearing upon the issue of homicide. The issue of self-defence and the issue of "provocation" are not only entirely different in substance and effect, but their solution is dependent upon quite distinct and distinguishable factual circumstances, and are not matters of concurrent consideration. Thus, it is only if the defence of self-defence is rejected that it is then for the jury to consider afresh the whole evidence to determine whether the matter of provocation is established so as to reduce the quality of the crime from murder to culpable homicide. This, I think, requires to be made very clear. The direction given to the jury by the presiding judge in the case of H.M. Advocate v. Kizileviczius, supra, at p. 63, which counsel for the appellant submitted should have been given in this case, was given in terms which are not infrequently cited in cases of homicide, but are in my view open to serious criticism. The facts in that case were such that a verdict of murder or of culpable homicide was inevitable, as Lord Jamieson said, "because in this case I do not think there is any room for a verdict of not proven". But he went on to say this:

"Now, I have already told you that the plea of self-defence, although not leading to complete acquittal, might result in a verdict of culpable homicide. What I meant was this, that if you think that the accused, having been put in a position of real danger—danger to his life, that is—used unnecessary violence or continued to use violence after the danger had passed, which he was not justified in using, but that he did so in the heat of the moment, with no intention to kill and without thinking of the consequences of what he was doing—if you find that, you would be entitled to find him guilty of the lesser crime of culpable homicide."

Then, the learned judge goes on to say, "very much the same thing applies to the plea of provocation which has been put forward, but I must direct you that in order to give effect to that plea there must be provocation at the time". Thereafter his Lordship proceeds to give an explanation of the nature of provocation by quoting a sentence from Macdonald's Criminal Law (4th edn.), p. 135 as illustrative. (The same sentence within quotation marks but no author's ascription also appears in the 5th edn. at p. 94.) While the illustration taken from Macdonald is a sufficiently accurate, though abbreviated, description of the substance of the plea of provocation, what precedes it in Lord Jamieson's charge is a compounding of two wholly disparate matters, the "special defence" of self-defence, upon which adequate direction had already been given on p. 62, and the plea which required no special intimation, of provocation, which, if sustained, entitled and required the jury to return a verdict of guilty of culpable homicide. In so far as Lord Jamieson is to be held to have given a direction in law that a plea of self-defence "might result in a verdict of culpable homicide", that in my opinion was a wrong direction in law and confused two entirely separate matters, and clearly conflicts with what was said by Lord Cooper in the passage already cited from Crawford v. H.M. Advocate . If a special defence of self-defence fails the only proper and competent verdict is one of murder, unless, that defence being rejected, the jury on further renewed consideration of the whole evidence reach the conclusion that by reason of the degree of provocation held by them to be established, that plea should be sustained to the limited effect of reducing the crime from what otherwise would have been murder, to one of culpable homicide. This is and has been the law since the days of Hume and of Alison: cf. Hume on Crimes, i. 240, 248 (4th edn.), Alison, Principles, i. 102.

Now it is plain enough, I think, when the wording of the appellant's first ground of appeal is considered and his counsel's argument in support of it, that it rests essentially upon the directions given by Lord Jamieson in the case of Kizileviczius, and in my view therefore, is one that is ill-founded for the reasons I have endeavoured to set out. Further, having examined the learned trial judge's charge I am of opinion that he did give, on p. 19 of his charge, adequate direction on the nature of the plea of provocation and its effect, if established to the jury's satisfaction, upon the verdict they could return, quite separately from his direction upon the matter of self-defence. I would therefore reject the appellant's first ground of appeal. I turn now to the appellant's second ground.

The presiding judge, in his direction to the jury upon the special defence lodged by the appellant, in my opinion correctly directed them as to the substance of self-defence in law and properly kept his direction on this matter entirely separate from his direction as to the nature and effect, if established, of a plea of provocation. On self-defence, the presiding judge gave the direction I have already quoted. With his statement of law as far as it went, counsel for the appellant did not quarrel but, as already noted, he based his submission that it was fatally defective on the ground that he "failed to direct the jury that in considering the plea of self-defence they should make some allowance for the excitement or state of fear or the heat of blood at the moment of the attack upon the appellant by the deceased, if, that is, they were satisfied such an attack had been made".

The degree of force which is in law permissible to repel an unprovoked attack, escape from which is not reasonably possible and the use of which will warrant an acquittal on the ground of self-defence, must be adjusted to the violence and quality of the attack which has to be repelled. That is the essence of the matter. No doubt that in giving direction to a jury on this matter and by way of illustration, phrases such as "not to weigh in too fine scales", "making allowance for the excitement or state of fear or heat of blood at the moment of attack" may be used by the judge—but, while such phrases have their uses, they are not statements of the law to be applied, but illustrative of it. While the law permits the use of force in repelling force, when escape from the attacker is not reasonably possible, the protection which the law affords to the victim of an attack is not a licence to use force grossly in excess of that necessary to defend himself, cf. Hume on Crimes, i. 228, 229 (4th edn.). That is the foundation on which the plea itself is based. What is that excess in a particular case is a matter for the jury to decide on the evidence before them and under proper and sufficient direction in law. There is nothing to be found in the institutional writers, or in such an authoritative text book as Macdonald, or in decided cases, to suggest that as matter of law it is the duty of a judge, in a trial for murder where self-defence is pleaded, to give direction in the specific language suggested by the appellant. It is, however, clearly the duty of the judge to explain to the jury that the benefit of the defence is lost where the force used to repel the attack is excessive, and in my opinion where, as here, the language is precise and positive and the degree of excess characterised which will elide the defence is specifically stated to be "cruel", then it is not mandatory for the judge to illustrate by examples the meaning of these words. No doubt, judges frequently find it helpful to make use of the language used by Lord Keith in the case of H.M. Advocate v. Doherty, supra, and the use of such illustrations may be of assistance to the jury, but such picturesque or illuminative phrases do not become mechanical but mandatory shibboleths to be uttered in every case of murder where the defence of self-defence is presented, under penalty, in the case of omission, of a quashing of the verdict on the ground of misdirection.

In all the circumstances of this case and considering the presiding judge's charge as a whole, I am of opinion that the legal principles to be applied by the jury in determining the issue of self-defence or the further and subsequent issue of culpable homicide in respect of provocation, were put before the jury by the presiding judge with sufficient accuracy and clarity, and that the further directions which the appellant has argued should have been given were rightly not given by the judge. I am therefore of opinion that both grounds on which this appeal is based are ill-founded in law and consequently the appeal should be refused.

LORD JUSTICE-GENERAL (Emslie).—I entirely agree.

LORD BRAND .—I also agree.