Scottish High Court of Justiciary Decisons

GEORGE LEES IRVINE v. HER MAJESTY'S ADVOCATE [2000] ScotHC 1 (9th January, 2000)

The appellant is George Lees Irvine who went to trial in Glasgow Sheriff Court on an indictment containing a charge of assault to severe injury and the danger of life. He was found guilty of that charge and sentenced to two years imprisonment. He now appeals against conviction.

The evidence led at the trial was in short compass. The Crown led the evidence of the complainer and two persons who had witnessed the assault on the complainer but none of these witnesses could identify the assailant. The Crown also led evidence of a statement which the appellant had made to police officers and founded on it as containing a confession which displayed special knowledge. In particular, the appellant told the police where the assault had taken place and what he had been wearing at the time. He also told them that he had stabbed the complainer under the armpit. However, he went on to tell the police that the complainer had produced a kitchen knife, and had threatened him with it, and that the complainer had lifted his arm and made to slash him. He had taken out a small knife in response to being under attack from the complainer. He said that he had been acting in self-defence. The appellant did not give evidence, or lead any evidence, but he lodged a special defence of self-defence.

The grounds of appeal originally lodged on behalf of the appellant were in the following terms:

In the course of the hearing before us we allowed the following additional ground of appeal to be lodged:

In her charge the sheriff told the jury that "evidence is what a witness says in the witness box, and you must base your decisions on the evidence and not on any outside influence." She directed the jury that the burden of proof rested on the Crown throughout and that if they had a reasonable doubt it was their clear duty to acquit. They were told that "if it is accepted by you that Mr. Irvine was acting in self-defence you must acquit him", self-defence being a complete or absolute defence. The sheriff set out the Crown case and when she came to deal with the defence she gave the following directions:

Counsel for the appellant submitted that the statement which the appellant had made to the police had been a mixed statement as described in Morrison v. H.M. Advocate 1990 J.C. 299 and it followed that the whole statement was admissible as evidence of the facts contained therein. However, no direction to that effect was given by the sheriff, nor did the sheriff tell the jury (1) that they were entitled to treat any explanations given by the appellant in his statement as the truth, (2) that if they believed the appellant's statements to the effect that he was acting in self-defence they must acquit him or (3) that if the statements made by the appellant created a reasonable doubt in their minds as to his guilt, they must give him the benefit of the doubt and acquit him. The sheriff dealt with the parts of the statement founded on by the Crown but she did not deal with the statement as a whole. The onus was on the Crown to displace the explanation given by the appellant that he had been acting in self-defence but that was not made clear to the jury, and the jury were not told how they should approach the exculpatory parts of the appellant's statement. It was particularly important for such directions to be given in a case where the appellant had lodged a special defence of self-defence. While counsel accepted that it was not necessary for the sheriff to use the exact wording set out in Morrison (at p. 313), the directions given to the jury in this case had been quite inadequate and had resulted in a miscarriage of justice. Counsel referred to King v. H.M. Advocate 1985 S.C.C.R. 322, Dunn v. H.M. Advocate 1986 S.C.C.R. 340, Smith v. H.M. Advocate 1994 S.C.C.R. 72 and MacLeod v. H.M. Advocate 1994 S.C.C.R. 528.

In reply, the Advocate depute accepted that the sheriff had not given the jury directions in the terms set out in Morrison v. H.M. Advocate but submitted that in the circumstances of the present case the charge, read as a whole, had been adequate. The only support for the special defence of self-defence was the exculpatory part of the statement given by the appellant to the police. The sheriff set out in her charge details of the account which had been given by the appellant and had left the issue of self-defence to the jury. In the circumstances, the words which the sheriff used had the same effect as a direction in accordance with the decision in Morrison. A direction that the jury should acquit if they accepted the appellant's statement that he had acted in self-defence was necessarily implied in the charge. While it was conceded that there had not been a specific direction that if what the appellant had said created a reasonable doubt as to his guilt he should be acquitted, the absence of such a direction did not constitute a misdirection as the jury had earlier been told that if they had a reasonable doubt their duty was to acquit (cf. Dunn v. H.M. Advocate, supra, Hughes v. H.M. Advocate 1997 S.C.C.R. 277). There was a clear implication that if the defence of self-defence created a reasonable doubt then the appellant was entitled to be acquitted. The jury would have appreciated that there was a link between the direction that self-defence was a complete defence to the charge and the direction relating to reasonable doubt. The advocate depute also referred to Harrison v. H.M. Advocate 1993 S.C.C.R. 1087 and Seils v. H.M. Advocate 1997 S.C.C.R. 518.

It was common ground that the statement which the appellant made to the police was a mixed statement within the meaning of the decision in Morrison v. H.M. Advocate and that the sheriff did not give the directions set out in Morrison. However, it is recognised that slavish adherence to the Morrison formula is not required and in this case the questions for our determination are whether the directions given by the sheriff amounted to sufficient compliance with what the court laid down in Morrison and, in particular, whether she failed to give the jury adequate directions in regard to the exculpatory parts of the appellant's statement. In this connection the charge must, of course, be viewed as a whole. While the sheriff referred to the appellant's statement, she did not direct the jury that the whole statement was admissible as evidence of the facts contained therein. We are not satisfied that the jury must necessarily have been aware that the statement was admissible for that purpose, having regard to the fact that the appellant did not give evidence and the direction as to what constituted evidence for consideration by the jury. The jury were not directed that they must consider the whole statement, both the incriminatory and exculpatory parts, and determine whether the whole or any part of the statement was accepted by them as the truth. They were not told that, if they believed the appellant's statement that he had been acting in self-defence, they should acquit him, nor were they told that if the exculpatory account which he had given created a reasonable doubt in their minds, then he was entitled to the benefit of the doubt and should be acquitted. Further, when she dealt with the issue of self-defence, the sheriff told the jury that "if it is accepted by you that Mr. Irvine was acting in self-defence you must acquit him". In the circumstances we consider that the sheriff did not make it clear to the jury that it was for the Crown to displace the appellant's explanation that he had been acting in self-defence and it seems to us that there was a material risk in this case that the jury might have thought that the appellant required to establish that he had acted in self-defence.

Having considered the charge as a whole we are satisfied that the directions given by the sheriff were inadequate and, in particular, that the jury were left to decide the case without being given sufficient guidance as to what their approach should be to the exculpatory explanation given by the appellant in the course of the police interview. We are satisfied that in the circumstances of the present case there was material misdirection by the sheriff which amounted to a miscarriage of justice. We would only add that, in a case which admittedly involved a mixed statement, it is to be regretted that the sheriff failed to follow the clear directions contained in Morrison v. H.M. Advocate and Scaife v. H.M. Advocate 1992 S.C.C.R. 845.

On the whole matter we shall sustain the appeal, set aside the verdict of the jury and quash the conviction of the appellant.