Act: Ogg; McCusker McElroy

Alt: Young, AD; Crown Agent

23 April 2009

[1] On 19 November 2007 at Paisley Sheriff Court the appellant was found guilty by a majority verdict of the jury of the following charge:

"On 15 August 2006 at Lennox Terrace, Paisley, you D.M., A.F., Paul Dewar. and S.C. did assault William Robinson, c/o Strathclyde Police, Paisley and did seize him by the body, knock him to the ground, repeatedly kick him on the head and body and strike him on the body with a knife or similar instrument, all to his injury and permanent disfigurement."

[2] The jury deleted the word "severe" which had originally appeared before the word "injury" in the charge. At the end of the Crown case, the prosecutor had amended the charge against the three co-accused by deleting the words "and strike him on the body with a knife or similar instrument", the word "severe" and the words "permanent disfigurement". The jury found the co-accused D.M guilty of this amended charge, and acquitted the other two accused.

[3] The facts can be briefly stated. In the late evening of 15 August 2006, the complainer, his wife and son (aged 21) were at home. The complainer was asleep, but was wakened when he heard the door being "chapped", and his wife at the front door explaining that everyone in the house was in bed. The complainer then heard a door being kicked, and on going to investigate saw three to four people through the decorative glass panel in the front door. He dressed hurriedly and went outside, and followed the group, which he now saw to consist of four young men, into Lennox Terrace, where he asked them there why they had been kicking his front door. The co-accused D.M. responded aggressively and according to the complainer immediately lunged at him. They grappled with one another and fell against a hedge. The complainer was then punched and kicked by more than one other person, and was dragged to the ground, where he was kicked in the side on a number of occasions. When he got to his feet he realised he had received a stab wound to his lower back, which subsequently required treatment at hospital. He had three to four stitches inserted into the wound, and was detained overnight.

[4] The appellant gave evidence and accepted that he had had a knife with him on the night in question and had used it to stab the complainer in the back. He had taken what he described as a little pen knife with him when he went out that evening because a lot of people were being stabbed in the area, and the knife was small enough to fit into his pocket. He said that the complainer had been the aggressor in the incident, and that he had ended up on the ground on top of D.M., and was punching him on the face, aiming for his eye. He had become scared and panicked, and thought that if the complainer felt a sharp pain, he might leave D.M. alone, and so he had stabbed him. That had no effect, so he punched the complainer a couple of times, and then he and his three co-accused had walked away. D.M. also gave evidence, and claimed that the complainer had been the aggressor, and that he had been punched and gouged in the eye. It is clear, however, that the jury disbelieved D.M.'s evidence, as he was convicted of assault.

[5] Prior to the trial each of the four accused had lodged a special defence of self defence. The appellant's plea was in the following terms:-

"McElroy for the Third Named Panel Paul Dewar pleads not guilty to the charge on the Indictment and specially and without prejudice to said plea states that evidence may be led from Crown or defence witnesses to establish that, if the offence was committed, it was committed by the Panel in defence of D.M. Specifically the Third Named Panel, Paul Dewar struck William Robertson with a knife during the course of an assault being perpetrated upon said D.M. by said William Robertson".

The sheriff's directions on self defence were in the following terms:-

"In our law, if a person is attacked, or is in reasonable fear of attack, they are entitled deliberately to use such force as is needed to ward off that attack. That applies also if it is a friend who is in danger. The situation the defence says (inaudible) in this case in respect of the situation. If a person is acting in defence of himself or in defence of another, then the law says his actings in so doing are not criminal. He should not be guilty of the crime of which he is charged and should therefore be acquitted.

However, three conditions must be satisfied. The first one, the accused must have been attacked or had reason to believe that he was in imminent danger of attack and had acted in that belief; and that situation is one that you could look at in relation to (D.M.): or that a companion had been attacked or was in imminent danger of attack and he must (inaudible) most definitely may have been attacked; the person who thinks that a companion had been attacked or was in imminent danger of attack, the person must have reasonable grounds for his belief.

The second condition is this: violence can only be used as a last resort. If an individual could have avoided the attack by, for example, running away, then he should have taken that safe means of escape.

Thirdly, the third condition that needs to be satisfied is that it must have been necessary for the accused to use force and he used no more than a reasonable amount of force."

[6] Thereafter the sheriff then gave further directions on the question of excessive retaliatory violence, and for the need for the jury not to judge matters too finely and to allow for the heat of the moment, all in standard terms.

[7] The ground of appeal against conviction is in the following terms:-

"1. That the learned sheriff erred in directing the jury at page 17 of the charge that a condition for a special defence of self defence was that if an individual could have avoided the attack by e.g. running away, then he should have taken that safe means of escape. The appellant was acting to protect a third party and in such circumstances evasive action was not necessary for a special defence of self defence."

The essence of the appellant's submission therefore is that in dealing with the appellant's plea of self defence, bearing in mind that he claimed to have been acting in defence of another, the sheriff should have made it clear to the jury that while the requirement to use violence only as a last resort, for example by taking any escape route available, ("the second condition"), might have applied to D.M., that requirement was not appropriate to cover the position of the appellant. If D.M. had had the opportunity of running away, it was said, then the need for intervention and the use of violence would not have been necessary or justified. But the sheriff should have made it clear that a requirement to take advantage of any easily available escape route did not apply in those circumstances to the appellant.

[8] In response the Advocate depute argued that the references in the charge to the second condition, to the effect that violence could only be used as a last resort and that any reasonable and readily accessible escape route should be taken, were clearly not referable to the appellant in the circumstances of the present case, and the jury would readily have understood that. It would have been obvious to the jury that the second condition should be applied to D.M., but not to the appellant. While the requirements that the use of violence is only justified in the face of actual or imminent assault ("the first condition"), and the need not to use unnecessary or excessive violence ("the third condition"), would have applied to all the accused, the second condition would not apply to the appellant. All of these three requirements were clearly linked to the idea of necessity, which is required to justify any violence offered in self defence, and, in the submission of the Advocate depute, that meant that the jury would understand that the second condition could not be relevant to the situation in which the appellant found himself.

[9] In our view it is clear that merely giving the standard directions on the second condition in a defence of self defence, when the accused is acting in defence of another, is insufficient. For the trial judge simply to say in such circumstances that the appellant should have taken any opportunity of avoiding the attack, for example by running away, is inconsistent with the idea that in certain circumstances the law entitles a person to intervene in defence of another. In such a situation, the need for further directions in appropriate terms must arise.

[10] We are confirmed in that view by an examination of what authority is available. In HM Advocate v Carson & Another 1961 SLT 21, Lord Wheatley, (as he then was), in charging a jury in a case where the accused pled that he had assaulted the victim only in defence of a third party, made no mention of the second condition, and confined his directions to the need for the jury to be satisfied that the violence apprehended against the third party was either imminent or taking place (the first condition), and the need for the retaliatory violence to be "within reason" in terms of the third condition. In Fitzpatrick v HM Advocate 1997 SLT 796, where the circumstances were broadly similar to the facts in the present case, Lord Justice General Hope said (at page 798 K-L):-

".... we consider that there is force in the criticism which counsel made of the direction, in respect that the sheriff did not distinguish sufficiently between the special defence of self defence where it relates to action taken by the accused person in his own defence, and actions taken by him in order to attempt to protect or defend others. The passage as a whole lacks the clarity which one would have expected from directions on these issues, had they been of importance to the defence which was advanced."

It is true, as the solicitor-advocate for the appellant pointed out, that later on in the judgment, Lord Hope (at p 799 ) appears to suggest that there is no difference in the directions which have to be given where the accused claims to be acting in defence of himself on the one hand, and where he says he intervened in defence of a third party, on the other:-

"We accept the submission of the learned advocate-depute that the same test in each of its three branches be applied when considering the special defence of self defence in regard to a third party."

However, an examination of the facts in Fitzpatrick demonstrates that both the appellant, and the third party in whose defence he had claimed to act, had willingly involved themselves in the original scuffle, and had had a clear opportunity of not becoming involved in the violent incident in the first place. In those circumstances, Lord Hope was careful to distinguish the case of Carson, where the incident had already developed to the point of the third party being under attack when the accused intervened. We are therefore satisfied that in the passage quoted above, Lord Hope was merely applying the same conditions of the standard test in a plea of self-defence to the circumstances of the particular case with which he was dealing.

[11] This matter was also referred to in the case of Barrie v HM Advocate, 2002 SLT 1053. In that case, five accused were charged with assault and murder. The evidence was that four of the accused had formed a plan to go to the address of the victims with a view to carrying out an armed robbery. As they made their way towards their destination, they were joined by the appellant. At the door of the victim's house, a series of violent altercations took place, resulting in the death of one of the occupants, and injury to two others. The appellant lodged a plea of self defence on the basis that he had seen one of his co-accused involved in a fight with one of the victims, believed that he was getting the worse of the encounter, and so intervened in an attempt to stop the fighting by assaulting the victim. In these circumstances the trial judge gave standard directions to the jury on the question of self defence and indicated that such a defence was open to someone who was acting in defence of another. In delivering the Opinion of the Court, Lord Coulsfield said (at para 7):

"We have come to view that the submissions on behalf of the appellant should be upheld. We do not think that it is necessarily incumbent on a judge when dealing with a plea of self defence in the form in which it arose in this case to analyse the conditions applicable in great detail. As a matter of common sense, a jury may reasonably be expected to allow for the particular specialities of the situation, so long as the general position is put clearly to them. In the present case, however there was only a very passing reference to defence of another person and, although very little more may have sufficed, we have come to the conclusion that the jury were not given adequate directions as to how they should deal with the defence put forward by Barrie. It follows that Barrie's conviction must be quashed."

We note however that the Court did not give any indication of what further directions would be appropriate, and in particular said nothing about the second condition.

[12] In our view therefore the present charge is defective in that it does not deal adequately with the situation where an accused is acting in defence of another. The essence of the second condition, in such a plea, is that violence should only be used as a last resort. The issue of whether the accused should have taken any reasonable escape route will normally, in that situation, not arise. Rather, it is then incumbent upon the judge to direct the jury, in relation to the second condition, as to whether or not the violence in question was in fact used only as a last resort. How that is done will depend on the circumstances of each individual case. It may be that the judge has to direct the jury that the second condition simply means that any violence used by the accused was necessary to prevent or stop the violence offered to the third party. It may be that more detailed directions are required. But whatever the circumstances, and while it is impossible to lay down hard and fast rules, the trial judge must give such directions as make clear to the jury how the principles and conditions of a plea of self defence of either kind apply to the circumstances of the case. What must be avoided is what clearly happened in the present case, where as a result of the directions given, the jury could well have been left with the understanding that the appellant had not taken the opportunity to distance himself from the fight between the complainer and D.M., and that therefore the defence of self defence was not open to him. In these circumstances we have reached the conclusion that the trial sheriff misdirected the jury, and that the misdirection could have caused a miscarriage of justice. For these reasons we must sustain the ground of appeal and quash the conviction.