First Appellant: C M Mitchell, Advocate; Paterson Bell

Second Appellant: Collins, Solicitor-Advocate; Capital Defence

Respondent: D Young QC, Advocate depute; Crown Agent

17 November 2010

Introduction

[1] On 9 December 2009 the appellants were convicted after trial of the following offence:

"On 3 October 2008 at Napier Place, Glasgow, you ... did assault Sean Lavery ... punch him on the head, knock him to the ground and attempt to kick him, all to his severe injury, permanent disfigurement and to the danger of his life".

[2] The appellants were aged 16 at the time of the offence; the complainer Sean Lavery was aged 17. The incident occurred when teenagers gathered at the Riverside and Napier Place areas of Govan. Many of them had been drinking.

[3] The sheriff's report notes that there was conflicting evidence. The Crown case relied upon the eye-witness evidence of Stacey Lavery (aged 20, the complainer's sister) and Cherie McManus (aged 18, the complainer's girlfriend). These witnesses described both appellants approaching the complainer and both trying to punch him. A punch from the first appellant connected, and the complainer fell to the ground. According to Miss Lavery, the first appellant then tried to kick the complainer; according to Miss McManus, both appellants tried to kick him. Neither witness described any initial threatening language or behaviour on the part of the complainer which might have justified the appellants acting in the way they did.

[4] The defence evidence was different. The first appellant lodged a Special Defence of self-defence in the following terms:

"ROBERTSON for the [first appellant] pleads not guilty to the charge upon the indictment, and specially and without prejudice to this plea states that on the occasion libelled [the first appellant] acted in self defence to the limited extent that he punched Sean Lavery ... once upon the head thus knocking him to the ground, [the first appellant] having a reasonable apprehension that an imminent attack by Sean Lavery upon ... Daniel Collins [the second appellant] was about to take place".

The second appellant did not lodge a Special Defence: as was explained by the first appellant in his evidence, the second appellant "didn't do anything at all" (page 19 of the transcript). The first appellant gave evidence at the trial; the second appellant did not. The first appellant stated that the complainer approached the second appellant and said "Daniel, I'll fucking slash you" (or "stab you"). No knife was seen, but the first appellant, afraid that the complainer had a knife and was about to attack his friend, punched the complainer once from the side. The complainer fell to the ground. The first appellant said in evidence that he made no attempt to kick the complainer once he was on the ground, as the complainer was "knocked out" (page 18 of the transcript). A defence witness David McKay (aged 17) gave evidence supportive of that sequence of events.

[5] The complainer suffered a skull fracture and blood clots caused by hitting his head on the ground. His injuries were severe and life-threatening, and required immediate medical treatment. He underwent a craniotomy and the blood clots were evacuated.

The sheriff's charge

[6] The sheriff charged the jury inter alia as follows:

"But in this case you know that the first accused has lodged a special defence of self-defence, or to be more accurate, the defence of another, it amounts to the same thing. ...

In the context of this case the first accused is saying that at the time the crime was committed he was acting in the defence of another, hence he should be acquitted of the charge. Members of the jury, it is for the Crown to meet that defence and satisfy you beyond reasonable doubt that it should be rejected. Now in our law if a person is attacked, or is in reasonable fear of attack, he is entitled, deliberately, to use such force as is needed to ward off that attack. That applies also if it is a friend or relative who is in danger. So the accused would not be guilty of the crime now charged if he acted in self-defence or the defence of a friend, he could be acquitted by the jury.

But that could happen if, and only if, each of these three conditions [is] satisfied. Firstly, the accused must have been attacked or had reason to believe that he or his friend was in imminent danger of attack and acted on that belief. The danger must be immediate not in the future. He must have reasonable grounds for the belief, even though they may [turn] out to be mistaken.

Secondly, the accused can only use violence as a last resort. If there were other ways he could reasonably have avoided the attack he should have taken them. What that means is this, if there was a safe means of escape that's the course the accused should have taken.

Thirdly, it was necessary for the accused to use force and he used no more than a reasonable amount of force. Self-defence is simply to stop an attack, it is not a licence to use force grossly in excess of what is needed for his defence or the defence of his friend. There must be what we call no cruel excess. If the accused went beyond what you thought was reasonable force, if a defensive act becomes an offensive one he would be guilty of assault. If the accused acted in revenge, retaliation or anger, that would be a criminal assault, not self-defence."

Appeals against conviction

[7] The appellants appeal against conviction. The first appellant contends that the sheriff misdirected the jury on the issue of self-defence of another. The direction which the sheriff gave would have been appropriate if the first appellant had been acting in self-defence of himself; but where he was acting in self-defence of another, it was erroneous and misleading to give the direction that "if there were other ways he could reasonably have avoided the attack he should have taken them. What this means is this, if there was a safe means of escape, that's the course the accused should have taken". The jury might have interpreted this direction as meaning that if the first appellant could have escaped safely, he should have done so, regardless of what might be about to happen to the second appellant. Reference was made to Dewar v HM Advocate 2009 JC 260; 2009 SCCR 548.

[8] The second appellant adopted the first appellant's argument, with the additional contention that, as the appellants were said to have acted in concert, it would be reasonable to infer that exculpation by self-defence of the actions of the first appellant would have resulted in an exculpation of the second appellant and thereby his acquittal: hence a miscarriage of justice had occurred.

[9] The Advocate depute accepted that there had been a misdirection. However he argued that no miscarriage of justice had occurred. The jury's verdict demonstrated that they had believed the Crown witnesses and accepted the Crown case. Accordingly the jury never reached the stage of applying the sheriff's directions on self-defence.

Discussion

[10] As noted above, the Advocate depute conceded that there had been a misdirection in the sheriff's charge in the passage beginning "Secondly", quoted in paragraph [6] above. We agree. As is explained in Dewar v HM Advocate:

"The essence of the second condition, in [a plea of self-defence of another] 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 DM, and that therefore the defence of self-defence was not open to him ..."

[11] In the present case, it was similarly important that the jury should not be left with the impression that someone claiming self-defence in the protection of another person could not properly rely upon that defence if he personally could have escaped safely and run away from the trouble. Accordingly it was necessary to adjust the directions relating to self-defence in order to avoid giving that impression.

[12] While conceding the existence of that misdirection, the Advocate depute submitted that it had not led to a miscarriage of justice. Again we agree. The jury were faced with two different versions of events, as outlined in paragraphs [3] and [4] above. By their verdict, the jury demonstrated in two ways that they rejected the defence evidence, and preferred the evidence of the Crown witnesses. First, according to the first appellant, the second appellant did nothing. David McKay's evidence was supportive of that position. Thus, on the defence evidence, the second appellant had not actively associated himself with a common criminal purpose to assault Sean Lavery: cf dicta in Mackinnon v HM Advocate 2003 SCCR 224. Yet the jury convicted the second appellant of assaulting Sean Lavery by punching him on the head, knocking him to the ground, and attempting to kick him. The jury must therefore have rejected the defence evidence; accepted the evidence of Crown witnesses Miss Lavery and Miss McManus; and applied the doctrine of concert to that evidence. Secondly, the first appellant in evidence maintained that he had delivered a single punch to Mr Lavery, and had not thereafter attempted to kick him. Yet the jury's verdict contains the words "attempt to kick him". Kicking was no part of the evidence led in support of the plea of self-defence. Again therefore the jury must have accepted the evidence of Crown witnesses Miss Lavery and Miss McManus, and rejected the defence evidence that there was only one punch and no attempt to kick.

[13] The Crown evidence left no room for self-defence. The jury must have accepted that there was a concerted attack upon Sean Lavery by the two appellants by punching him and attempting to kick him, and that there had been no initial threatening language or behaviour on the part of Mr Lavery. The jury thus plainly rejected the evidence that provided a factual basis for self-defence.

[14] In our view therefore, in the particular circumstances of this case, the misdirection relating to self-defence of another did not lead to a miscarriage of justice.

Decision

[15] For the reasons given above, we refuse each appeal against conviction.