Scottish High Court of Justiciary Decisons

APPEAL COURT, HIGH COURT OF JUSTICIARY

[2014] HCJAC116

XC78/14

Version 3 (21/10)

Lord Eassie

Lord Menzies

Lord Drummond Young

OPINION OF THE COURT

delivered by LORD DRUMMOND YOUNG

in

APPEAL AGAINST CONVICTION

by

TRACY MEIKLE

Appellant;

against

HER MAJESTY’S ADVOCATE

Respondent:

Appellant:  Jackson QC, McIlwham;  Capital Defence Lawyers Edinburgh (for Capital Defence Lawyers Glasgow)

Respondent:  Scullion AD;  Crown Agent

28 October 2014

[1]        On 18 December 2013 the appellant was convicted of the murder of Lorraine Foy.  The charge was to the effect that on 22 June 2013 at a specified address in Glasgow the appellant seized the deceased by the hair, struggled with her and struck her repeatedly on the neck and body with a knife, whereby she was so severely injured that she died on the following day.  The appellant originally faced three other charges, two of assaulting or resisting police in the execution of their duty and a third of assaulting the deceased’s daughter, who was then 14 years old.  The other three charges were withdrawn by the Crown in the course of the trial.  The appellant lodged a special defence of self-defence.  The trial judge narrates that during his speech the advocate depute raised the issue of provocation, and consequently the judge directed the jury on both provocation and self-defence in the course of his charge.

[2]        The circumstances of the offence are narrated by the trial judge.  The appellant had drunk considerable quantities of alcohol and taken valium on the day of the offence.  While in the neighbourhood of a community centre, one of the places where she had been drinking, the appellant had an altercation with the deceased’s 14-year-old daughter, and head-butted her.  This incident was the subject of one of the charges that were withdrawn during the trial.  The judge states that the reasons for the incident did not emerge clearly.  Following the incident the daughter telephoned the deceased, and she and her friend immediately travelled to the centre by taxi.  As the appellant left the vicinity of the centre she shouted her address to the daughter and her friends who were gathered there.

[3]        The deceased, her daughter, the friend who had accompanied her and others then went to that address, where the appellant lived on the first floor.  The deceased shouted up to the appellant from the entrance to the close as the appellant stood at a window in her flat.  The judge records that it was clear that the deceased was angry, and the evidence was to the effect that she was challenging the appellant to a fight.  The female partner of the appellant was staying in the flat with her toddler son.  She shouted down to those at the close mouth that they should not come up because there was a child in the flat.

[4]        The appellant then armed herself with a knife and went downstairs to the close entrance, where she struck the deceased with the knife five times, penetrating a number of major blood vessels in the area of the neck.  An ambulance was called by a neighbour who had witnessed the attack.  Although it arrived quickly, and although determined efforts were made by medical staff at Glasgow Royal Infirmary to save her life, the deceased died in the early hours of the following day.  The deceased’s wounds are set out in a post mortem report.  There were five stab wounds in total: one on the front of the right side of the neck, one on the left side of the neck, one on the left shoulder and two on the left side of the upper back.  The injury on the right side of the neck pierced one of the main branches of the aorta, the right brachiocephalic artery, and the injury on the left side of the neck tracked downwards and pierced the left external jugular vein.  The wound on the left shoulder damaged a scapular artery.  There were no defensive wounds.  The stab wounds resulted in collapse at the scene and subsequent cardiac arrest on the way to hospital.  The cause of death was given as stab wounds to the neck.

[5]        The appellant gave evidence in her own defence.  She was unable to recall the details of the assault because of her state of intoxication, but she accepted that she had been responsible for the deceased’s injuries.  The trial judge records that she was accordingly unable to give any evidence as to her thought processes or beliefs before she went down to the door of the close, when she reached the door or when stabbing the deceased.

[6]        In his charge the trial judge directed the jury on the issues of self-defence, which had been expressly raised as a special defence, and provocation.  No issue is taken in relation to self-defence.  So far as provocation was concerned, the judge stated to the jury that the speeches had raised the question of whether the deceased might have provoked the appellant into coming downstairs to fight with her.  He mentioned evidence from a neighbour that, when he heard a commotion on the street from what he thought were eight to ten people shouting outside, he knew that there was going to be trouble and telephoned for the police.  Another witness had heard the deceased shout up to the appellant to come downstairs.

[7]        After mentioning that evidence, the judge directed the jury, in standard terms, that provocation arises for consideration when four elements exist.  First, the accused must have been attacked physically or believed on objective grounds that she was about to be attacked.  Secondly the accused must have lost her self-control immediately out of temper or fear.  Thirdly the accused must retaliate instantly and in hot blood.  Fourthly, the violence of the accused’s retaliation must be broadly equivalent to the anticipated violence that the accused faced.  The judge then directed the jury that there was evidence that the appellant feared that she was going to be attacked, and indeed that she was going to be slashed.  He directed the jury that it was a matter for them to decide what to make of that evidence.  The judge further directed the jury that the effect of provocation was to reduce a charge of murder to culpable homicide.

[8]        He then gave a direction about culpable homicide in general terms.  The direction was short, and in standard form: culpable homicide is causing death by an unlawful act which is blameworthy, but where there is an absence of wicked intention to kill or wicked recklessness.  The judge then stated that the appellant could be convicted of murder only if the jury were satisfied beyond reasonable doubt that she was guilty of murder as he had earlier defined it.

[9]        After the jury had retired, they made a request for clarification of the directions on self-defence and provocation.  In relation to provocation, they asked “Provocation – do all four criteria have to apply to determine the accused acted under provocation?”.  The trial judge asked for counsel’s comments, and put his proposed reply to counsel.  Counsel for the appellant stated that when he addressed the jury he specifically did not mention a plea of provocation; his approach was that, quite apart from any technical use of provocation, what mattered was whether or not the jury were satisfied beyond reasonable doubt that there was the wicked intent for murder.

[10]      When the jury returned, the judge began by reminding them that the burden of proving guilt beyond reasonable doubt lay on the Crown and that the rules about burden of proof, standard of proof and corroboration did not apply to the defence.  In relation to provocation, he directed the jury that it was for the Crown to satisfy them beyond reasonable doubt that the appellant was not acting under provocation when the deceased was stabbed at the door of the close; consequently it was for the Crown to satisfy them beyond reasonable doubt that one or more of the four conditions that had been enumerated was not present at that time.  In the light of the submission made by counsel for the appellant, he added that ultimately the question for the jury was whether, looking at all the evidence that they accepted, they were satisfied that the death of the deceased constituted murder as defined in the charge.  As already mentioned, the jury returned a verdict of guilty of murder.

[11]      In presenting the appeal, counsel submitted that the defence position at the trial had been that, if self-defence were rejected, the jury should only convict of culpable homicide as the appellant lacked the intention or wicked recklessness required for murder.  Provocation in the formal sense had not been argued; instead, it had been submitted that a verdict of culpable homicide should be returned on an overall assessment of the whole of the evidence.  Giving directions on provocation, it was submitted, indicated to the jury that the only basis for culpable homicide was provocation in the technical sense, as defined by the trial judge.  That was said to undermine the approach that had in fact been taken by defence counsel, which had specifically and deliberately not relied on provocation in any formal sense.  The result would be that the jury were left thinking that they could only return a verdict of culpable homicide if the formal requirements of provocation were found to exist, which was not the defence position.

[12]      In our opinion this submission is misconceived.  On the facts as narrated by the trial judge, we consider that the only possible basis for culpable homicide was provocation.  Thus, unless provocation were found to exist, there was in our opinion no reasonable basis upon which the jury could return a verdict of culpable homicide.  In those circumstances the judge could have directed the jury that, if neither provocation nor self-defence were found to exist, the verdict could only be one of murder.  On that basis, the reference that the judge made to culpable homicide in general terms (paragraph [8] above) was favourable to the appellant.  It was not, however, necessary.

[13]      In his speech to the jury counsel for the appellant referred to self-defence, and also to culpable homicide, but did not mention provocation in terms.  Nevertheless, he referred at some length to the group at the door who were there to fight the appellant, to the appellant’s fear that they were going to come in, and to the presence of a toddler in the house.  He also referred to the language that had been used by the deceased.  At the conclusion of his speech, he asked the jury to look at the whole picture, including the people who had arrived at the door, the fear that they would come up to the flat, the language used and the appellant’s fear of being slashed.  In the light of that he submitted that whatever else it might be the crime should not be murder.  Regardless of the terminology used, a submission of that nature amounts in our opinion to provocation.  Indeed, in the absence of provocation, the factors referred to in counsel’s speech to the jury do not have any bearing on the mens rea of the appellant.

[14]      The details of the assault on the deceased are also relevant.  As noted above at paragraph [4], the deceased sustained multiple stab wounds in the vicinity of her neck.  While we would not wish to lay down any absolute rule, we would observe that an attack of that nature will normally rule out culpable homicide on any basis other than provocation or diminished responsibility, a defence that was not argued in the present case.  In this connection we refer to three earlier decisions of the High Court.  First, in Brown v HM Advocate, 1993 SCCR 382, LJG Hope stated (at 391):

“The correct approach to the questions raised by the direction as to what constitutes murder should normally be to leave it to the jury to decide whether the necessary degree of wicked recklessness has been established by the Crown.  Nevertheless there may be cases where the number or nature of the blows struck or the weapons used are of such a character that there is no room for a verdict of culpable homicide, in the absence of any other basis for that verdict in the evidence.  Parr v HM Advocate, [1991 JC 39; 1991 SCCR 180], is one recent example for death resulted from about eight blows to the head struck with a hammer or similar instrument resulting in extensive comminuted and depressed fractures to the skull and there was no evidence on the ground of provocation to justify reducing the verdict from murder to culpable homicide.  Broadley v HM Advocate, [1991 JC 108; 1991 SCCR 416], is another, where death resulted from five stab wounds to the head and body suggesting an attack pressed on with great determination and there was no question of accident”.

[15]      Secondly, in Ferguson v HM Advocate, 2009 SCCR 78, it was held that the way in which a case is presented by counsel for the parties is not necessarily determinative of the options available to the jury, but that nevertheless the trial judge need not place before the jury the option of a verdict that would not be justifiable on a reasonable view of the evidence.  Lord Osborne, delivering the opinion of the court, quoted the foregoing passage from Brown and continued (at paragraph [30] on page 87):

“In our opinion [the foregoing passage] reflects the proper approach to the matter under consideration.  In that passage Lord Justice General Hope cited Parr v HM Advocate and Broadley v HM Advocate as examples of cases in which a jury could not reasonably have convicted of culpable homicide and in which, accordingly, it was appropriate for the trial judge to withdraw that verdict from the jury.  It would be possible to add to those examples a case where a victim had been shot through the head, or where a stab wound wound had been directed to the heart, or where the offender had used a knife to cut vital blood vessels in the neck of the victim”.

The last of those examples is almost identical to the present case.  The reason for withdrawing culpable homicide in such a case, in the absence of provocation, diminished responsibility or any other special factors, is obvious: any person who uses a knife against an especially vulnerable part of the victim’s body must be at least wickedly reckless as to whether the victim lives or dies, and that is murder.

[16]      Thirdly, in Broadley v HM Advocate the Court stated (at 1991 SC 114;  1991 SCCR 423C-E) that the test for distinguishing between murder and culpable homicide is an objective one.  That case involved “an attack of great determination involving the use of a lethal weapon with which repeated blows were delivered upon the body of the victim”.  The possibility of accident had been eliminated, and it was accepted that there was no question of provocation or diminished responsibility.  No other factor had been mentioned that might modify the quality of recklessness involved in the attack.  On that basis it was held that the jury were correctly directed that, if they were satisfied that the appellant had carried out the assault, they were bound to convict him of murder and there was no room for a verdict of culpable homicide.  Every case turned on its own facts, however, and there might be cases involving the use of a lethal weapon to cause fatal injuries where culpable homicide was open to the jury.  It may be observed that in that case the contention unsuccessfully advanced by the appellant was that in judging whether he had displayed the necessary wicked recklessness the jury might have regard to wider background circumstances, including the appellant’s unhappy domestic and family circumstances.  The present case, like Broadley, involved a determined attack with a lethal weapon on a highly vulnerable part of the body.  In these circumstances we are of opinion that the trial judge could quite properly have withdrawn culpable homicide from the jury apart from the question of provocation.  We should also mention another example of a case where it was held that culpable homicide was properly withdrawn from the jury, Anderson v HM Advocate, 2010 SCCR 270; in that case the appellant had only struck one blow against the deceased, but it was directed against a vulnerable part of the deceased’s body and in particular in the direction of his heart.  That is entirely consistent with the other cases to which we have referred.

[17]      Counsel for the appellant stated that his submissions to the jury had deliberately avoided reference to provocation in any technical or formal sense, but had instead referred to more general considerations of the mens rea of murder, and in particular the requirement of intention or wicked recklessness.  Although the facts might look similar to provocation that had not been the defence position.  In our opinion the formal requirements of the defence of provocation cannot be evaded in this manner.  Those requirements, which are referred to specifically in the trial judge’s charge, are well established.  They restrict the defence of provocation, but that is a matter of deliberate policy, resulting from a long series of judicial decisions.  That policy is to ensure that the defence of provocation is kept within reasonable bounds.  In this way, protection is given to those who lose self-control under fear of attack and react in a proportionate manner, but not to those who, for example, experience relatively minor verbal taunting, or who respond in a manner that is plainly disproportionate to the threat.  Consequently, in any case where provocation may arise as an issue, the jury should be directed on the four essential requirements mentioned by the trial judge.  If those are not established, the defence fails.  On facts that may amount to provocation, it is provocation in the formal and technical sense that is relevant, and not an amorphous notion that mens rea has been reduced in a manner that falls short of the definition of provocation.

[18]      We are accordingly of opinion that the judge directed the jury properly on provocation, and would have been entitled to withdraw any more general question of culpable homicide from the jury.  That he did not do so is a matter that tended to favour the defence.  In these circumstances we will refuse this appeal.