APPEAL COURT, HIGH COURT OF JUSTICIARY
 HCJAC 90
Appeal No: XC396/09
OPINION OF THE COURT
delivered by THE RIGHT HONOURABLE LORD OSBORNE
RAY DANIEL SNEDDON
HER MAJESTY'S ADVOCATE
Appellant: A Brown, Advocate; George More & Co, Edinburgh
Respondent: Prentice, Q.C., Solicitor Advocate; Crown Agent
31 August 2010
The background circumstances
 On 13 May 2009, at Edinburgh Sheriff Court, the appellant was found guilty as libelled on the single charge in the indictment which he faced. That charge was in the following terms:
"(1) On 31 May 2008 at the car park of the Calderwood Inn, Dundas Street, Bonnyrigg, Midlothian, you RAY DANIEL SNEDDON did assault Marc Wilson .....and did strike him to (sic) the neck with your hand whilst holding a glass, causing the glass to break to his severe injury and permanent disfigurement".
The jury, in reaching their verdict, added a rider to the effect that the assault had been carried out under verbal and physical provocation. On 9 June 2009, the sheriff made a probation order on the appellant, with a duration of 2 years. As part of that order, the appellant was required to perform 100 hours of unpaid work in the community and to abide by a restriction of liberty order for a period of 6 months. On 20 August 2009 the appellant lodged a note of appeal against his conviction containing several grounds. For the present purposes, it is necessary to notice only grounds 1(a), 1(b) and 4. These grounds are in the following terms:
"1. That there was a miscarriage of justice due to misdirections in law given to the jury by the learned sheriff. In particular:
(a) the learned sheriff misdirected the jury in stating that 'It is not in dispute that Marc Wilson (the complainer) was struck in the neck with a glass'. In the context of this case, this amounted to a misdirection as the appellant was not charged with striking the complainer to the neck with a glass, but rather he was charged with striking him to the neck with his hand whilst holding a glass. Whilst the learned sheriff suggested to the jury that the appellant had used a weapon, he had not been charged with using a weapon. This was particularly important to the assessment of the special defence of self-defence which had been lodged on behalf of the appellant and in particular the issue of whether the appellant had acted in a manner disproportionate to the violence the complainer had used against him.
(b) In relation to the special defence of self-defence, the learned sheriff misdirected the jury in stating that 'If he (the appellant) deliberately struck him (the complainer) on the neck with his fist and in his fist is a glass then he falls to be convicted'. Furthermore, he stated 'If the act was deliberate, it is an assault'. The learned sheriff ought to have directed the jury that if they accepted that the blow struck by the appellant was deliberate it was then incumbent upon them to consider the issue of self-defence before considering whether or not to convict the appellant.
4. The learned sheriff erred in law in repelling an objection raised by the agent for the appellant during the evidence of the appellant. The agent for the appellant objected to a question from the procurator fiscal depute which suggested that the appellant had used a glass in order to assault the complainer. The basis for the objection was that such a suggestion fell outwith the scope of the libel which stated that the appellant 'did strike him (the complainer) to the neck with his hand whilst holding a glass, caused the glass to break to his severe injury and permanent disfigurement'. By suggesting to the appellant that he had used the glass in order to assault the complainer, the procurator fiscal depute was suggesting that he had committed an offence more serious than what was libelled in that he had used a weapon. By wrongly repelling the objection of the agent for the appellant, the sheriff enabled the procurator fiscal depute to suggest to the appellant that he had used the glass as a weapon. This was a critical factor in the assessment of the special defence which had been lodged on behalf of the appellant. It was particularly important in the assessment of whether what the appellant did in response to the violence perpetrated against him by the complainer was reasonable and proportionate in the circumstances. The learned sheriff having erred in repelling the objection, a miscarriage of justice has occurred".
 The circumstances of the offence, as narrated by the sheriff, were as follows. The victim of the assault, Marc Wilson, was a young man who was very drunk himself at the time when he was assaulted. The sheriff comments that he was not a particularly convincing witness when it came to the detail of what had happened and that was reflected in the jury's rider in that they reached a view that he had provoked the accused both verbally and by butting the appellant. What was also very clear was that the complainer had a very nasty and lasting injury to his neck, which the jury could see, and he was very clear that that had happened when the appellant hit him on the side of his neck with a glass. There were no eye witnesses and corroboration of the Crown's case came from the contents of the police interview of the appellant. The contact by the glass with the complainer's neck was not disputed, but self-defence was pled.
 The appellant gave evidence in support of the plea of self-defence and during his evidence in chief he maintained that position, the sheriff observes only just, in that he said "I turned round to give him a punch and forgot I had a glass in my hand". The sheriff comments that, in cross-examination, he proved to be an appalling witness so far as his own interests were concerned and he gave evidence so poorly that before speeches "I gave active consideration to the issue of whether or not the self-defence could remain before the jury". Effectively his position was that he was drunk and angry and that if he was hit by anyone in that situation his proper and ordinary reaction was, as it was here, to hit back. He made no attempt to indicate that he would remove himself from such a situation even if he could, or that his reaction be measured to deal with the attack proportionately for self-protection purposes.
Submissions of the appellant
 Counsel for the appellant pointed out that a special defence of self-defence had been tabled on the appellant's behalf. The criticism of the sheriff's charge - and this was a position reflected in what he said at page 2 of his Report to this court - was that he had used language which suggested that the crime involved was more serious than was, in fact, the case. That would necessarily have had the effect of misleading the jury in relation to their consideration of the issue of self-defence. Part of the background was the unusual form of charge (1) in the indictment itself. The allegation made there was that the appellant did "strike him to the neck with your hand whilst holding a glass...". The charge was not to the effect that the appellant had struck the complainer on the neck with a glass.
 It was important to note what the sheriff had said in his charge to the jury at pages 17 and 18 of the transcript. There the sheriff said:
"Now it is not in dispute in this case that Marc Wilson was struck in the neck with a glass....".
That was an inaccurate and misleading description of the crime charged. It was submitted that, in saying these things, the sheriff had taken a wrong shortcut, which was important in the context of a case involving a plea of self-defence. The sheriff had dealt with the matter of self-defence at page 30 and following of the transcript of his charge. Counsel accepted that the incident had occurred in an open car park, where there had been space which might have enabled the appellant to have moved away from the complainer following the attack upon him. However, the situation was an immediate one, where it was necessary to take into account the heat of the moment. At pages 34 to 35 of the transcript of the charge the sheriff had dealt with the need for proportionality in relation to the action taken in self-defence. The real problem in what the sheriff had said was to be found at page 35. There he said:
"In self-defence you must not go beyond what is reasonable otherwise a defensive act becomes an offensive one and it becomes an assault".
However, that was said against a background in which, as narrated, the sheriff had misdirected the jury on the crime charged, saying that it was an assault "with a glass".
 The particular matter upon which ground of appeal 1(b) was focused was to be found at pages 26 to 27 of the transcript of the sheriff's charge. There the sheriff said:
"So you will understand that I must now give you a direction and that direction is that if you consider that Mr Sneddon deliberately punched Mr Wilson with his fist and in his fist was a glass then he falls to be convicted of striking him on the neck with a glass. He cannot say that is an accident. He has to accept the responsibility for the fact that he has erroneously, if you find this to be the case, he has erroneously left the glass in his hand before punching.
That is his responsibility. He may think that that is a fairly tough rule, but in fact, it is the blow, the act of striking, which you must consider. If you find that to be deliberate then it will be an assault".
In using the language just quoted, the learned sheriff had elided the part to be played by the plea of self-defence. Furthermore, he had repeated the misleading description of the offence charged, already referred to. The language that he had used was inappropriate having regard to the formulation of the charge in the indictment, which clearly meant that there was no deliberate intent to use the glass as a weapon. Of course, if the charge in the indictment was properly capable of being interpreted as an allegation of the use of a glass as a weapon, counsel recognised that his argument would fail.
 Counsel next turned to deal with ground of appeal 4. In this connection he referred to pages 14, 17 and 28 to 43 of the transcript of the evidence and the objections taken to it. The crucial objection is to be found at page 36. It was taken to the terms of the cross-examination of the appellant by the procurator fiscal depute. The essence of it was that it was being suggested to the appellant that he had assaulted the complainer "with the glass". In effect, the rationale of the objection was similar to the points already made in relation to the sheriff's description of the offence in his charge, which had ignored the precise terms of the indictment. The sheriff's decision on the objection was expressed between pages 41 and 43 of the transcript of the proceedings. The overall submission made was that the procurator fiscal depute and the sheriff had both erred in relation to what the language of the charge meant. The objection to questioning had been wrongly repelled. The effect of all this was that a proper consideration of the appellant's plea of self-defence had been compromised. There was thus a miscarriage of justice.
The submissions of the Advocate Depute
 The Advocate depute submitted that the charge was simply a charge of an assault committed with a glass. He agreed that, for unexplained reasons, the charge in the indictment had not been formulated in the normal way. However, in that charge, it was made clear that the mechanism of the assault involved the use of a glass. On any fair reading of the charge in the indictment, that was its plain intention. Having regard to the evidence it was submitted that there was no basis for the plea of self-defence. In that connection reference was made to what was said by the sheriff in page 2 of his Report. The appellant's own evidence at page 53 of the transcript showed that this was not a proper case where a plea of self-defence could succeed. On that approach, whatever view one took of the sheriff's charge to the jury and his approach to the objection, there had been no miscarriage of justice. The position of the Crown was that the sheriff ought to have withdrawn the special defence of self-defence from consideration by the jury, because the requirements for such a defence were not present in the case. Apart from anything else, there had plainly been a means of escape available to the appellant, although that point surprisingly had not been put to him in evidence.
Reply by counsel for the appellant
 In reply, counsel for the appellant said that, while the sheriff might have withdrawn the plea of self-defence, he did not do so. The result of that was that the jury had to consider it. Against that background, the court could not say that the sheriff's erroneous approach to the language of the charge had not been productive of a miscarriage of justice.
 In our opinion, the resolution of the issues raised by the grounds of appeal depends upon the proper view to be taken of the language of charge (1) in the indictment. The allegation of assault is specified in this way:
"... and did strike him to the neck with your hand whilst holding a glass, causing the glass to break to his severe injury and permanent disfigurement".
If the Crown had intended to allege that the appellant had used the glass in his hand as a weapon in the assault, different language could and should have been used, for example, that the appellant had assaulted the complainer, "with a glass". However, for whatever reason, the Crown did not employ that language, but used the language just quoted, which, to us, suggests an allegation of assault which did not embrace the unlawful use of the glass as a weapon in the assault. Adopting that approach, we now turn to consider the particular issues raised in the grounds of appeal.
 Ground 1(a) raises directly the issue of misdirection by the sheriff of the jury in relation to the offence charged. We have concluded that in the passage highlighted at page 17 of the transcript of the charge to the jury, the learned sheriff did in fact misdirect the jury in relation to the offence charged, on account of his reference to the complainer being "struck in the neck with a glass". This characterisation of the offence is, of course, repeated at pages 26 to 27 of the transcript, where there is a reference to the appellant falling to be "convicted of striking him on the neck with a glass".
 The significance of these directions clearly emerges in relation to the special defence of self-defence, which the sheriff decided should go before the jury. In particular, the proportionality of the action taken by the appellant in response to the assault upon him was an important issue in relation to that plea of self-defence. In particular, in the circumstances of this case, the striking of an attacker on the neck with a hand could well be proportionate and constitute self-defence, while the infliction of such a blow with a glass might not be. Unfortunately that aspect of the matter is simply not dealt with in the directions given by the sheriff in relation to self-defence. Indeed what he said at pages 26 and 27 of the charge to the jury may be seen as misleading, since it refers to the striking of the complainer on the neck "with a glass".
 Turning to ground of appeal 4, in substance, the sheriff's erroneous approach to the terms of the charge on the indictment underlies this ground, which is a criticism of his decision to repel the objection taken to the questioning of the appellant by the procurator fiscal depute. His decision to take that course is evidently a consequence of the interpretation that he placed upon the terms of the charge in the indictment. In our view, the objection taken on behalf of the appellant should in fact have been sustained.
 The question arises, in this situation, as to whether there has occurred a miscarriage of justice. During the course of the debate before us, the Advocate depute attempted to suggest that the special defence of self-defence should have been withdrawn by the sheriff, because the evidence available in support of it did not enable it to be said that the action taken by the appellant could have been taken in self-defence. Whatever one might think as to the circumstances in which the incident occurred, namely in an open car park, surprisingly, it was not put to the appellant that, as an alternative to the use of violence, he could have escaped from the attentions of the complainer. Thus the issue of means of escape was not properly explored. In those circumstances, we do not consider that it is appropriate for us to follow the line of argument advanced in this connection by the Advocate depute. The fact of the matter was that the sheriff decided that the plea of self-defence should not be withdrawn from the jury, who had therefore to consider it. We find ourselves unable to say that the plea of self-defence was bound to fail. Thus, we cannot regard the sheriff's misdirection of the jury in regard to the interpretation of the charge as a matter of no moment. Plainly in connection with the plea of self-defence, for the reasons that we have given, it was crucial that the true nature of the crime charged should have been correctly described to the jury. Regrettably we conclude that that did not happen. Furthermore, that was compounded by the sheriff's decision to repel the objection taken to the questioning of the procurator fiscal depute. In all these circumstances we consider that a miscarriage of justice has occurred, as a result of which the appellant's conviction must be quashed.