First Appellant: Wheatley, Q.C., Solicitor Advocate, Thomson, Solicitor Advocate; McArthur Stanton, Dumbarton

Second Appellant: McConnachie, Q.C., C.A. Smith; Paterson Bell, Edinburgh

Respondent: Bain, Q.C., A.D.; Crown Agent

8 July 2011

Introduction

[5] On 15 June 2010 the appellants, who are brother and sister, appeared for trial in the High Court at Edinburgh on inter alia a charge of murder. After amendment, that charge read as follows:

"(001) on 7 June 2009 at the premises known as Ali's Takeaway, 887 Shettleston Road, Glasgow you IRENE SINGLETON and PETER SINGLETON did assault David McShane, formerly residing at Flat 0/1, 784 Shettleston Road, Shettleston, Glasgow and did push him, struggle with him, repeatedly punch and kick him on the head and body and repeatedly stamp on his head, whereby he was so severely injured that he later died at Glasgow Royal Infirmary, Castle Street, Glasgow on 7 July 2009 and you did murder him; and

you IRENE SINGLETON did commit this offence while on bail, having been granted bail on 8 January 2009 at Airdrie Sheriff Court;"

[6] At the conclusion of the trial the jury, by a majority, convicted both appellants as then libelled. In the appeals against conviction which are now before this court, each appellant alleges misdirections of the jury by the trial judge on the issue of provocation which had been raised on their behalf, and it is contended that these misdirections resulted in a miscarriage of justice.

[7] In her Note of Appeal, the first appellant complains (i) that the directions on provocation at p.14 of the trial judges' charge were "... unspecific [sic] and likely to confuse the jury", since they did not focus on the nature and extent of retaliatory violence as indicated in Gillon v HM Advocate 2006 SCCR 561; and (ii) that this was compounded by certain remarks at pp.14-15 which "... implied the existence of an onus upon the accused". Along similar lines, the second appellant complains (i) that in dealing with provocation at p.14, the trial judge misdirected the jury on the question of onus, and (ii) that on the following page he improperly conveyed the impression that he thought little of the plea and was only leaving it before the jury "... as counsel wanted me to". At the hearing of the appeal, however, the appellants' argument came to be focused, not only on the passages criticised in their stated grounds of appeal, but also on the wider proposition that the trial judge had essentially failed to direct the jury on the effect which a finding of provocation might have on their verdict. The jury had, it was said, received inadequate guidance on the nature and effect of provocation, and in the context of a murder trial that was a failing so significant that a miscarriage of justice was inevitable.

[8] As described by the trial judge in his Report, the circumstances of the offence were as follows:

"It appears that the victim, David McShane, a 43 year old man, had been drinking. He had gone to the takeaway mentioned in the charge, probably along with a friend. He, and possibly the friend, had become involved in an argument with the two Singletons. This had escalated into violence, initially outwith the shop premises and latterly inside. Any initial aggression offered by Mr McShane had been quickly overcome and he was knocked to the ground in a joint attack by the two Singletons. Thereafter, both of the accused were seen to repeatedly punch, kick and stamp on the victim as he lay defenceless on the ground. The attack was fairly prolonged and involved a high degree of violence. The eye witnesses described both accused as taking an equal part. A witness from a flat across the road from the takeaway premises was so concerned by what he was seeing that he telephoned the police, as did the owner of the takeaway shop. A further sister of the two accused, the witness Diane Singleton, was also present in the takeaway during the course of the incident. She attempted to restrain the two accused and eventually managed to pull Peter Singleton out of the premises. All the parties concerned were still in the vicinity when the police arrived a few minutes later. Neither of the accused was in any way co-operative with the police, expressed any remorse about the victim's fate or responded to subsequent police questioning.

The victim was taken by ambulance to the Accident & Emergency Department of the Royal Infirmary where he was found to have sustained multiple rib fractures together with severe bruising to the face and head. Mr McShane was detained in hospital for the next 4 weeks after his admission. There was concern about difficulties that he had in breathing caused by his rib fractures (some of which were double fractures) and consequential injuries to his lungs. Despite ongoing treatment in intensive care and artificial assistance with his ventilation, the condition of the victim worsened and on 7 July 2009 he died.

It transpired that Mr McShane had underlying health problems. He had a long-term drug dependency. He also had a history of cirrhosis of the liver. A pathologist witness, Dr John Clark, opined that the victim's poor general health possibly contributed to the fatal effects of his injuries. Dr Clark was of the view that a healthier person might have survived. However, he was also of the view that the death was directly caused by the injuries and some of these, in his opinion, were caused by extreme violence."

[9] This account broadly coincided with certain notes of evidence from the trial which were lodged for the court's assistance. However, these notes further indicate (i) that shortly after the physical altercation began outside the premises, the deceased was forced back inside by the appellants, smashing a glass door in the process; (ii) that at this point the deceased was not doing or saying anything, possibly because he was too drunk to do so; (iii) that both appellants violently set about him with fists and feet, continuing for some time after he fell to his knees and thereafter as he lay defenceless and crying on the floor; (iv) that the deceased's facial and head injuries were severe, including an orbital fracture on the left side and multiple blunt force lacerations and contusions; (v) that in Dr Clark's opinion the impression of a shoe was evident on a gross swelling to the left side of the deceased's forehead; and (vi) that, on forensic examination, the clothing and shoes of both appellants were found to be contaminated with the deceased's blood.

[10] More importantly, the notes reveal the very limited extent of the evidence as to (i) whether the deceased acted violently towards either appellant at any stage; and (ii) whether the subsequent conduct of either appellant involved a loss of control on his or her part. Shortly summarised, some evidence on the first point (violence on the part of the deceased) was given by the appellants' sister Diane Singleton. While astonishingly unable to recall any aspect of her siblings' behaviour, she testified that when the altercation first began the deceased loudly told the second appellant to "... shut the fuck up or I'll chop you up", and then moved his hand towards the waistband of his trousers as if going for a knife. The witness was not, however, asked if either of the appellants would have been aware of this, and tellingly she then explained how her own next move had been to approach the deceased and, without incident, remonstrate with him. According to Habib Rehman, who worked in the takeaway, punches were exchanged outside before two or three people forcibly drove the deceased back into the premises, and from then on the assault was wholly one-sided. An early police statement suggested that the deceased might possibly have thrown the first punch, but on the trial notes that point is open to interpretation. Similarly, the first appellant's initial claim that the deceased "had started it" merits little weight where the kind of conduct she had in mind was never made clear.

[11] As regards the second point (loss of control by either appellant), Diane Singleton was specifically asked in cross-examination whether either of the appellants had lost their temper in the course of the incident, and she replied that she didn't see that or couldn't remember. There was thus no direct testimony which suggested that either appellant suffered a loss of self-control at any stage, or that any such loss of control was brought about by violence on the part of the deceased.

[12] At pp.5, 6, 7, 12 and 13 of his charge to the jury, the trial judge to my mind gave adequate directions as to the possibility of their returning a verdict of culpable homicide notwithstanding that the crime libelled against the appellants was one of murder. At pp.8-12, he also gave adequate directions on the special defence of self-defence which was lodged on behalf of the first appellant only. These directions plainly followed on from defence speeches in which inter alia the "lesser verdict" was sought in the event that any assault was deemed non-murderous. In this regard, the trial judge began by defining the crime of murder, pointing out the Crown's contention that the attack on Mr McShane was so extreme and prolonged that the element of wicked recklessness as to the victim's fate had been established. He then contrasted that with culpable homicide, referring initially to the latter as "... causing someone's death by an unlawful act which is culpable or blameworthy", and continued:

"It's killing someone where the accused didn't have the wicked intention to kill and didn't act with such wicked recklessness as to make him guilty of murder. The acting should be viewed objectively, that is from the standpoint of an uninvolved observer and the question asked 'was this a murderous attack as I have defined it or something less, in which case it could be culpable homicide' ... so for the Crown to prove this charge, that is culpable homicide, you would need to be satisfied first that the accused committed an unlawful act, somewhat less than a murderous attack. Secondly, that the act must have been intentional or reckless or grossly careless ... and thirdly, that death was a direct result of the ... unlawful act ... The effect of a finding of culpable homicide as compared to murder is that the term 'murder' ... is deleted from the indictment and 'kill' is substituted. So what you are doing is convicting someone of killing someone culpably but not in such circumstances as to amount to the even more serious crime of murder. ... Putting aside any question of a deliberate intention to kill, you might like to ask yourselves was the attack sufficiently violent and sustained as to demonstrate the degree of wicked recklessness and callous disregard for the victim's fate as to render the attackers guilty of murder or were the actings as established culpable or blameworthy as they might be less than murderous in which case a verdict of guilt of culpable homicide might be more appropriate. This, as I understood it, was essentially the point that Mr McConnachie was making to you in the body of his submissions and again to quote Mr Prais once more the fact that a victim has died doesn't necessarily make any assault that caused the death murder and I think he instanced to you the sort of situation where in the course of a casual fight ... an assault which might be blameworthy (leads to) death but it wouldn't be murder because the necessary ingredients for either a murderous intent or a murderous attack were absent. So I agree with him on that. So you look at the nature and the qualities of the actings and ask yourself what do those amount to, was this a murderous attack, was it something less in which case it could be culpable homicide or as Mr Prais suggested at the very minor end of matters could be a simple assault".

[13] Against that background, the trial judge then turned specifically to the subject of provocation at p.14-15 of his charge. The relevant passage was in these terms:

"So what is provocation in law and how does it affect any possible verdict? Well the essence of provocation is that the accused have acted in hot blood while suffering from a loss of control provoked by an assault or insulting words or behaviour. Provocation may arise for consideration when each of these four circumstances exists. Firstly, where the accused had been attacked physically or verbally abused or insulted, secondly, where they have lost their temper and self-control immediately, thirdly, where they have retaliated instantly and in hot blood. If they had time to think and then acted that would be revenge not acting under provocation. Fourthly, where the violence or the retaliation was broadly equivalent to the violence faced, there must be no gross disproportion between the violence of the accused and the violence which prompted it. (It is) the degrees of violence you compare, the fact that the effect of the retaliating violence was more serious than ... the provoking violence doesn't necessarily mean that it was grossly disproportionate. You should appreciate that provocation is quite distinct from self-defence and shouldn't be considered along with it. I have already told you about self-defence. So first you would decide if the accused acted in self-defence. Only if you thought they hadn't would you again look at the evidence and decide whether they had acted under provocation. Now I have told you all along ladies and gentlemen that an accused doesn't have to prove anything. However, in the absence of his or her evidence it might be difficult for you to find the essentials for provocation, loss of self-control etc established. However, I leave the matter for your consideration as counsel wanted me to." (emphasis added)

[14] It was against the final part of this passage that the appellants' major complaints and criticisms were directed, and it was also contended that the trial judge had provided no answer to his opening question in that he had not explained how provocation might affect any possible verdict. But the trial judge's directions did not end there. From the top of p.15 he continued by commending (for the jury's consideration) the respective positions which the prosecutor and defence counsel had adopted in their speeches. What he said was this:

"So, ladies and gentlemen, to summarise what appears to be the respective positions of the parties to the case, although it's for you to remember what these submissions were, and to take those into consideration. The Crown seek a conviction for murder against both accused. Its position is that they were acting together and are jointly responsible for the consequences, that is, that death resulted from the injuries sustained. Defences of self-defence and provocation can't apply because of the excessive use of force by the accused once any danger or violence offered was over. The degree of violence evidenced by the extensive facial, head and rib cage injuries in the Crown's submission display the necessary degree of wicked recklessness and callous disregard for the victim's fate that would justify a verdict of murder in each case. Mr Prais for Irene Singleton asked you to consider carefully whether the actings complained of could amount to a truly murderous assault or rather at best for the Crown to culpable homicide. .... Can such actings as have been proved to have been carried out by his client not be excused by self-defence or at least mitigated by provocation so he sought an acquittal on her behalf or lesser verdicts of either culpable homicide or simple assault. Mr McConnachie on behalf of his client, Peter Singleton, conceded that his client's actions were at least culpable but not necessarily murderous. This was particularly so in the overall circumstances of the event in that there was a likelihood of the deceased being drunk, aggressive and according to Diane Singleton at least, threatening. There had obviously been provocation and while that might not excuse all that had had happened it should at least persuade you in the case of his client to bring in the lesser verdict. The degree of violence used was not necessarily murderous and would not have resulted in the death of a normally healthy person. So these various submissions then ladies and gentlemen are for you to deliberate upon. In doing so please bear in mind the cardinal rule that it's for the Crown to prove its case to your satisfaction beyond a reasonable doubt, as (there is) a presumption of innocence in an accused's favour. If left in reasonable doubt on any aspect of the case going to its essentials, you give the benefit of that to the accused and if that leads to his or her acquittal then so be it."

Parties' competing submissions
[15] Since the points raised in these appeals are within relatively short compass, it is unnecessary to rehearse the parties' submissions in undue detail. Suffice it to say that, for the respective appellants, it was maintained that the offending directions at pp.14-15 of the trial judge's charge (highlighted at para [9] above) were entirely inappropriate and had plainly led to a miscarriage of justice. First, the trial judge had erred in implying some onus on an accused person to give evidence where provocation was relied on; second, he had improperly tainted the whole exercise by his evident reluctance to leave the issue of provocation before the jury "... as counsel wanted me to"; and third, the succeeding comments on the parties' respective positions were (a) inaccurate in certain particulars and (b) inadequate to inform and instruct the jury as to the effect of a plea of provocation. According to counsel, provocation was a live issue for the jury to determine in the circumstances of this case. It was for the jury to decide whether the sustained assault by the appellants was "grossly disproportionate" by comparison with the violence initially offered by the deceased, and if evidence on the latter issue was sufficient to justify self-defence being left to the jury, then that must also apply to provocation. The appellants' real complaint was not just that particular directions on provocation were inappropriate, but that the issue of provocation had not been properly left to the jury at all.

[16] For the Crown in response, their written argument in each case (at paras 3.5 and 3.4 respectively) bore to concede a material misdirection on the onus of proof, and also a failure properly to explain the effect of a plea of provocation. At paras 3.15 and 3.14 of the same documents, however, the contention was quite different, namely that the effect of provocation would have been obvious to the jury from the trial judge's summary of submissions at pp.15-16. It was also contended that, throughout his charge, the trial judge had made it clear that the onus of proof rested on the Crown alone, and that if they were left in reasonable doubt on any aspect of the case then that doubt must be resolved in the appellants' favour. In the end the learned Advocate depute sought to withdraw, as inappropriate, any concession of law which might appear to have been made, maintaining (i) that, on a fair reading, the trial judge had not sought to invert the onus of proof; (ii) that the following sentence implied no reluctance to leave the issue of provocation to the jury; and (iii) that the charge, when read as a whole, conveyed sufficient information to enable the jury to deal with provocation in a proper manner. In any event, whatever might be said about the trial judge's directions, it could not be said that any miscarriage of justice had resulted. When the evidence was examined, there was plainly no proper basis for either self-defence or provocation, and neither plea should have been left to the jury. In particular, there was no acceptable evidence of material violence offered by the deceased towards either appellant at any stage. It was far from clear who had struck the first blow outside the takeaway, but any skirmish there had quickly been superseded by the sustained and murderous assault of which the appellants stood convicted. In the same context Diane Singleton's selective memory could for practical purposes be ignored where, on her own account, she approached the deceased without incident after allegedly suspecting that he might be going for a knife.

[17] Over and above the lack of acceptable evidence concerning provocative violence by the deceased, there was no evidence to suggest that either appellant had suffered a loss of self-control at any stage. Rather, the evidence suggested a vicious and controlled retaliation which went on for some time after the initial altercation was over. Along the same lines, no reasonable jury could have allowed either appellant to survive the "gross disproportion" test, and in the whole circumstances the plea of provocation (as also the plea of self-defence) should have been excluded from the jury's consideration. At one stage of her submissions, the Advocate depute seemed to suggest that, in the circumstances of this case, it might have been open to the trial judge to withdraw provocation from the jury, leaving the plea of self-defence in place, but as the discussion progressed she (rightly) recognised that if the circumstances were arguably susceptible to a live plea of self-defence it would be almost impossible to contemplate withdrawing the plea of provocation on its own. The Crown's final position appeared to be that in the circumstances of this case neither self-defence nor provocation was a legitimate plea to be left open for the jury's consideration.

Discussion

[18] Having carefully considered the competing submissions summarised above, I bear in mind how easily the detailed linguistic analysis of a transcribed jury charge may tend to mislead. Depending on tone, emphasis and inflection, the spoken word may come across quite differently from any later impression on paper; comments considered out of context may fail to convey their true meaning; and it is of course essential to acknowledge the right of different trial judges to approach the exercise of charging a jury in whatever way best suits their own personality and style. The aim is neither uniformity of expression nor any ideal of perfection. Rather, the task of an appellate court must be to ensure that key concepts are adequately and accurately addressed, and that, in the end, a jury has not been left in doubt or in error as to the nature of the task to be performed. Trial judges face considerable difficulties in this area, and in my view it is important that a material misdirection should be identified only where something serious and significant has gone wrong.

[19] Against that background, I have no difficulty in accepting that the trial judge's charge here may be criticised in various respects. It contains errors of law (albeit favourable to the appellants), such as the suggestion that mere verbal abuse is capable of founding a plea of provocation in a murder case, and the description of provocation at one point as a defence. Moreover, the effect of a plea of provocation did not receive the detailed treatment which might have been expected from the trial judge's rhetorical question at the outset. And as regards the passage highlighted at para [13] above, the wording of which the appellants complain was, at the very least, ill-chosen. To follow a re-statement of the Crown's onus of proof with a sentence beginning with the word "However" represented an avoidable risk, and in the following sentence the use of the phrase "... as counsel wanted me to" may be thought to do the same.

[20] Having said all that, however, I am ultimately not persuaded that any material misdirection occurred in the circumstances of this case. When the charge is read fairly and as a whole, taking full account of the discussion of the "lesser verdict" of culpable homicide at pp.5, 6, 7, 12 and 13, and the later passage at pp.15-16 where the parties' respective positions on the effect of provocation were (with evident approval) commended to the jury's attention, it does not seem to me that the jury were left in any real doubt as to the nature of the decision which lay ahead. If provocation as defined were found to exist, then all parties (including the trial judge) appear to have been in agreement that the "lesser verdict" of culpable homicide would appropriately reflect a non-murderous assault. The manner in which that might be signified was explained in two places, and while others might have embarked on further jurisprudential analysis of the rationale for a verdict of culpable homicide being appropriate in such cases, I do not believe that that would have added anything useful for the jury where, on a certain state of facts, the practical consequence for them was clearly understood and agreed.

[21] Turning now to the alleged inversion of onus, it is in my view significant that before, during and after the passage on provocation which the appellants sought to criticise, the trial judge went to some lengths to underline the burden of proof which lay upon the Crown, and also the need for any aspect of the case to be established beyond reasonable doubt. With that in mind, I am not inclined to construe the particular sentence at the foot of p.14 as implying a change of onus at all. For one thing that would have been at variance with the trial judge's repeated directions as to where the onus fell, and for another I consider that on a fair reading the sentence can and should legitimately be understood in a different way. Provocation is a largely subjective matter, depending on an accused person's loss of normal self-control as a reaction to significant violence. In the absence of any direct evidence from the person concerned it will inevitably be more difficult, although not necessarily impossible, for such a reactive loss of self-control to be inferred from other facts and circumstances. Outsiders may find it hard to judge whether a person's reaction was, for them, normal or abnormal, or whether, in their case, supervening violence was controlled or not. As already indicated, the trial judge was perhaps ill-advised to comment on evidential difficulties at this particular point of his charge, but in my view that is all he was doing there and I am unable to accept that the sentence must, instead, be read as some kind of qualification on the Crown's onus of proof.

[22] Moving on to the following sentence of the charge, containing the words "... as counsel wanted me to", it is in my view important to notice the context in which it appears. The trial judge had already given extensive directions on the "lesser verdict" of culpable homicide, and on the first appellant's plea of self-defence. He then spent the whole of p.14 explaining the main limitations on a plea of provocation, and at pp.15-16 he embarked on a summary of the parties' respective positions in which provocation was patently a live issue. Against that background it seems to me that, in the sentence complained of, the trial judge was merely confirming that (despite the evidential difficulty which he had just mentioned) the plea of provocation was being left to the jury in line with counsel's own approach. According to the appellants, the word "as" must be deemed equivalent to "only because", but for my part I am unable to regard that as a fair, or necessary, reading of what the trial judge said.

[23] For all of these reasons, while acknowledging that the charge in this case may be open to criticism in a variety of respects, I am not persuaded that any material misdirection of the jury has been identified. Even if I had taken a different view, however, I would have declined to hold that any miscarriage of justice resulted. In my judgment no reasonable jury, properly directed, could have held the necessary requirements for a plea of provocation to be satisfied in this case. In particular, there was no worthwhile evidence of significant violence being offered by the deceased towards either of the appellants at any stage. It may be that some punches were exchanged outside the premises, but it is far from clear who struck the first blow. Diane Singleton's selective evidence was similarly of no consequence, especially where, on her own account, she went over to the deceased and was able to remonstrate with him immediately after suspecting that he might be going for a knife. Plainly no knife materialised at this or any other point, nor was any violence offered to Diane Singleton by the deceased when she approached, and taking all the evidence into account my impression is that any violence emanating from the deceased was either minimal or non-existent. The witness Habib Rehman described the deceased as "too drunk to do anything", and as doing and saying nothing as he was forcibly pushed back into the premises by the appellants.

[24] As regards the element of loss of control, I am again struck by the absence of any worthwhile evidence upon which the appellants might have been entitled to rely. They themselves did not give evidence, either in the witness box or through the medium of a police interview; Diane Singleton was unable to say that either of them had lost their temper; and I do not think that a loss of self-control (or indeed the cause of it) could properly be inferred from the mere fact of a sustained and vicious assault. If provocative violence by the deceased, and a loss of self-control on the part of either appellant, could have been identified on the evidence, then it might have been a matter for the jury to determine whether what followed fell foul of the "gross disproportion" test. However, failing a proper evidential basis for both provocative violence and loss of self-control, it is in my judgment easy to conclude that the savage attack which followed was out of all proportion to anything that the deceased himself might previously have done. This was, in the end, a horrific and sustained assault by two people on a man who, for much if not all of the time, was incapable of resistance or aggression of any kind.

[25] For these reasons I agree with your Lordships that the appellants' plea of provocation was without merit, and that the trial judge ought properly to have withdrawn it from the jury's consideration.

Disposal

[26] In the result, I consider that these appeals are ill-founded and must be refused.