Scottish High Court of Justiciary Decisons

"Now, murder is constituted by any wilful act causing the destruction of life, whether the perpetrator wickedly intended to kill or displayed such wicked recklessness as to imply a disposition depraved enough to be regardless of the consequences. So the Crown must prove that the killer acted with either a wicked intention to kill or with wicked recklessness which showed that he was utterly regardless of the consequences."

He further directed the jury that they were bound to acquit the appellant if they were satisfied that he acted in self-defence or if they were left with a reasonable doubt as to that. He directed them that they could convict of the lesser offence of culpable homicide inter alia on the basis that they were satisfied that he had acted under provocation or if they were left in reasonable doubt as to that. The terms of his directions followed conventional lines in each respect and it is unnecessary to rehearse them in detail. It is enough to record that in the course of his directions relating to self-defence he said:

"However where self-defence is raised there are limits to its application. First of all, there must be imminent danger to the life or limb of the accused, or at least, and I think this is the approach taken in this case, the accused must have believed that there was such imminent danger and that belief must have been based on reasonable grounds, even if it was mistaken. So there are two stages. You have to ask yourself do you believe the accused when he says he believed that he was in imminent danger? Secondly, if you do, on the evidence was it reasonable for him to believe that ...".

Later in relation to the question of "cruel excess" he said:

"By way of example, to illustrate the approach to this question, if a man was struck by a blow by another man with a fist, with a punch, that could not justify retaliation by the use of a knife because there is no real proportion at all between a blow by a fist and the use of a knife. On the other hand, if a man genuinely believed that he was under attack from another man with a lethal weapon and had reasonable grounds for believing that, even if wrong, and he retaliated using a weapon then you might take the view that there was a reasonable proportion between the attack made and the retaliation offered."

In relation to provocation, the trial judge directed the jury inter alia:

"That description raises a number of requirements before provocation could apply. The first is that the accused must have had a reasonable belief that he was under a physical attack."

Before us counsel for the appellant presented argument in support of two separate, but related, grounds of appeal. The first is that the trial judge misdirected the jury in relation to self-defence. In that connection ground 1 of the Note of Appeal reads:

"In particular it was an error to direct them that the belief entertained by the accused had to be based on reasonable grounds. It is submitted that, since the crime or murder is one of intention, there is no reason why a genuine belief that one is acting in self-defence should not be a defence however that belief is arrived at."

The second ground of appeal argued is that the trial judge misdirected the jury in relation to provocation. Ground 2, in particular, reads:

"... it was a misdirection to suggest that the appellant had to have a reasonable belief that he was under attack. Reference is made to ground 1. By parity of reasoning it is submitted that the belief only had to be genuine."

"In our opinion self-defence is made out when it is established to the satisfaction of the jury that the panel believed that he was in imminent danger and that he held that belief on reasonable grounds."

In that case the position of the appellant, whose appeal against a conviction for murder succeeded on the basis of a misdirection by the trial judge, was that he believed, on grounds apparently supported by other evidence, that the deceased had had what appeared to him to be a knife in his hand.

"In matters of homicide Scots law admits the plea of provocation only within certain bounds which are considerably narrower than those within which it operates in English law. In Scots law it applies only where the accused has been assaulted and there has been substantial provocation. In English law, by contrast, even a slight blow or mere jostling may be sufficient to admit the plea. In Scots law, no mere verbal provocation can palliate killing. The same applied in England until the law was changed by section 3 of the Homicide Act 1957. The difference and scope of the doctrine of provocation in the two systems does not arise, it should be stressed, because Hume and the Scottish judges are unaware that people may react violently to minor physical provocations or to insults. Rather, as a matter of policy, the law has taken the view that in such cases the person assaulted or the person insulted should be expected to control himself, at least to the extent of not killing his tormentor. To this policy Scots law admits only one exception: the law recognises that when an accused discovers that his or her partner, who owes a duty of sexual fidelity, has been unfaithful, the accused may be swept with sudden and overwhelming indignation which may lead to a violent reaction resulting in death."

Given that deliberate and intentional attacks may be said to be wholly justified on the basis of self-defence, while it is understandable that allowance should reasonably be made for genuine mistakes of fact, it is equally understandable that not every such mistake should be thought to be capable of leading to exculpation. If it were otherwise even an intentional killing would fall to be regarded as wholly justified in circumstances where the accused's actions could be said to have been prompted by gross recklessness. In other words, an accused who intentionally killed in the mistaken belief that he faced a grave attack on his person, would (assuming all other requirements for self defence were met) be entitled to acquittal notwithstanding that he had recklessly ignored matters which would have destroyed that belief, had he not thus recklessly cast them aside; and his gross recklessness would go without penalty.

"The crime of rape consists in the carnal knowledge of a woman forcibly and against her will. Thus the mens rea of this crime includes the intention to have intercourse with the woman without her consent. The absence of a belief that she was consenting is an essential element in it. If the man has intercourse with a woman in the belief that she is consenting to this, he cannot be guilty of rape."

and later stressed (at p.93) that:

"The reason why, in rape cases, the man's belief need not be shown to be based on reasonable grounds for his belief to be relevant as a ground of acquittal is because of the particular nature of the mens rea which is required to commit the crime".

Of particular significance for present purposes, however, he also said (at page 93):

"As the trial judge points out in his report, there is ample authority that a person who claims that he acted in self-defence because he believes that he was in imminent danger must have reasonable grounds for his belief: Owens v HM Advocate; Crawford v HM Advocate; Jones v HM Advocate. He suggests that Meek was inconsistent with this line of authority. As the Solicitor General conceded that there was a misdirection in this case and that a direction on the lines indicated by Meek was appropriate here, we were not addressed to any extent on this point. We wish to say, however, that we are not to be taken, from what we have said in this opinion, as casting any doubt on the soundness of the dicta in those cases. Nor are we to be taken as suggesting that in any other case, where a substantive defence is based on a belief which is mistaken, there need not be reasonable grounds for that belief."

In these circumstances we do not consider that the case of Jamieson v HM Advocate can be said to afford any support for the appellant.