Scottish High Court of Justiciary Decisons

APPEAL COURT, HIGH COURT OF JUSTICIARY

[2015] HCJAC 101

HCA/2015/001080/XC

Lady Smith

Lord Bracadale

Lady Clark of Calton

OPINION OF THE COURT

delivered by LADY SMITH

in

APPEAL AGAINST CONVICTION

by

ROBERT URQUHART

Appellant;

against

HER MAJESTY’S ADVOCATE

Respondents:

Appellant:  Renucci;  Faculty Services Limited

Respondent:  Niven Smith, AD;  Crown Agent

11 November 2015

Introduction
[1]        The appellant was convicted by the jury at Perth Sheriff Court on 16 February 2015 of two charges: 

“(001) on 23 December 2013 at 203 Primrose Crescent, Perth you …. did assault Edward Rankin, Constable, The Police Service of Scotland then acting in the course of his duty and did strike him on the leg with a sword to his injury; 

and

(002) on 23 December 2013 at 203 Primrose Crescent , Perth you … did behave in a threatening or abusive manner which was likely to cause a reasonable person to suffer fear or alarm in that you did shout, swear and brandish a sword at Constables Rory Duncan and Ian Bailey of the Police Service of Scotland then in the execution of their duties;

CONTRARY to section 38(1) of the Criminal Justice and Licensing (Scotland) Act 2010”.

[2]        The issues raised by this appeal – which relates only to charge 2 – are:

1.   Is the special defence of self defence available in relation to a charge under section 38(1) of the 2010 Act?

2.   Does the defence available under section 38(2) of the 2010 Act impose a legal burden on an accused as opposed to an evidential one?

Background
[3]        On 23 December 2013, at about 11am, police officers attended at the appellant’s home address in Perth to enforce a warrant.  They attempted to force open the front door.  The appellant was inside, behind the door.  He was clad only in a t-shirt.  The police officers cut a hole in the door and he thrust a sword through it on a number of occasions.  The sword was about four feet long and it struck the police officer named in charge 1, on the leg.  Charge 1 related to that matter.  The appellant’s position at trial was that he had no idea who was at the door and thought there was about to be a break-in and a robbery or suchlike.  A special defence of self defence had been lodged but the jury convicted him of that charge. 

[4]    Turning to the events to which charge 2 relates, they are as follows.  Meanwhile, two other police officers had entered the house through the back door.  One of them – Constable Rory Duncan – was in uniform.  Both officers moved through the house and into the living room.  Whilst doing so, they repeatedly shouted “police”.  The appellant was in the living room.  He was brandishing the sword and he shouted and swore constantly.  He was standing about two metres from Constable Duncan and shouted “fuck off” to the police officers in the room.  They were unnerved by his actions.  Constable Duncan took out his CS spray and repeatedly told the appellant to put down the sword.  The appellant initially refused to do so and continued to swear and brandish the weapon.  A woman appeared and stood by the appellant.  She asked Constable Duncan to refrain from using the spray and the appellant lowered his sword.  Constable Duncan walked forward and wrenched it from his grasp.  

Sheriff’s directions
[5]        In his charge, the sheriff directed the jury that they could only consider the special defence of self defence in relation to the first charge;  it played “no part whatsoever” in relation to the second charge (pages 19- 20).  

[6]        Regarding the second charge, the sheriff directed the jury: 

“ …in general terms there’s no burden of proof on an accused person.  There is an exception to this in this case and I, I shall give you specific directions later.”  (page 13)

and

“If you accept …the evidence from the two officers, then you’ll have to consider whether the behaviour of the accused, in all the circumstances, was reasonable.  This is a defence.  The ..Act of Parliament which brought in this offence says that if an accused person …proves that …the behaviour was, in all the circumstances, reasonable, that amounts to a defence to the charge.  Now, what this means is that an accused person has to satisfy you on a balance of probabilities that his behaviour was reasonable at the time he so acted.”  (page 31)

Criminal Justice and Licensing (Scotland ) Act 2010 section 38
[7]        The terms of the provisions relating to the statutory offence are fundamental to the issues raised in this appeal . They are: 

“38 Threatening or abusive behaviour

(1)   A person (“A”) commits an offence if—

(a)  A behaves in a threatening or abusive manner,

(b)   the behaviour would be likely to cause a reasonable person to suffer fear or alarm, and

(c)   A intends by the behaviour to cause fear or alarm or is reckless as to whether the behaviour would cause fear or alarm.

(2)   It is a defence for a person charged with an offence under subsection (1) to show that the behaviour was, in the particular circumstances, reasonable.”

Submissions for the appellant
Availability of self defence
[8]        Counsel for the appellant submitted that self defence could be relevant to a charge under section 38(1) and the sheriff was wrong to have excluded it.  He accepted that it would depend on the facts of the individual case.  It might, however, be an answer to any or all constituent parts of the offence.  In particular, it might be relevant to mens rea, the third element.  He submitted that it would have been relevant to it in the present case.  Counsel accepted that any issue of self defence could also be raised under the umbrella of section 38(2).  He relied on the case of Derrett v Lockhart 1991 SCCR 109 and on the Crown’s stated position in their written argument which was to concede that since, on the authority of Derrett, self defence could be available in answer to a common law charge of breach of the peace, it must also be available in answer to a charge under section 38(1).  We should record that, given the Crown’s concession, counsel had not anticipated being pressed on this issue by the court;  we do not criticise him for that and commend him for having, in the event, assisted the court with detailed argument as noted above. 

Burden of proof – section 38(2)
[9]        Regarding the second issue, counsel submitted that it was clear that section 38(2) imposed only an evidential burden on an accused person.  The sheriff had erred in directing the jury that they required to be satisfied he had established the defence on a balance of probabilities.  The circumstances of the present case could be distinguished from those in the cases of Glancy v HMA 2012 SCCR 52 and McMurdo v HMA 2015 HCJAC 37, where the court had confirmed that a legal burden of proof was imposed in relation to statutory defences to, on the one hand, a charge of carrying a knife in public and, on the other hand, a charge of possessing indecent images of children.  Those were far more serious offences.  Here, the nature of the public interest was different and of lesser nature.  There was no need to impose a legal burden and it was disproportionate to do so.

Submissions for the Crown
Availability of self defence
[10]      The advocate  depute, whilst acknowledging the concession contained in the Crown’s written submission as referred to above, very frankly explained that he now had reservations about it.  The common law crime of breach of the peace was not identical to an offence under section 38(1);  the common law crime was more serious in respect that something greater than mere irritation was required with a reasonable apprehension of disturbance to the public peace being an essential element of the common law offence.  That being so, Derrett did not assist when considering the section 38(2) defence.  Further, the defence available under section 38(2) was wide; that was the context in which any issue of self defence fell to be raised.

Burden of proof – section 38(2)
[11]      The advocate depute submitted that the statutory defence imposed a legal burden on the accused.  The wording supported that conclusion and was not incompatible with article 6(2) ECHR; it should, therefore, be given effect to (R v Johnston [2003] 1 WLR 1736 paragraphs 44 – 46 per Lord Nicholls of Birkenhead).  Insofar as that interpretation would constitute an interference with the presumption of innocence, it was justified.  It was not unreasonable or arbitrary; the appellant had a full opportunity to show that he was unaware of the identity of those trying to enter his home and was afraid for his own safety.  These were matters so closely conditioned by his own state of knowledge and state of mind that it was – to use the terminology of Lord Bingham of Cornhill – “more appropriate” to require him to prove them on a balance of probabilities:  Sheldrake v DPP [2005] 1 AC 264 at paragraph 41 as followed in Adam v HMA 2013 JC 221 at paragraph 24.

[12]      When consideration was given to the words used in the statute, the activity prohibited and the balance to be struck between the public interest and the rights of the individual (Glancy v HMA 2012;  McMurdo v HMA) it should be concluded that the burden was a legal one.  He contrasted the present circumstances with those where the burden had been determined to be an evidential one; it was relevant that, unlike those offences under the Misuse of Drugs Act 1971 that carried a maximum sentence of life imprisonment - where the defence under section 28(2) of that Act imposed only an evidential burden - the maximum sentence available for a contravention of section 38(1) was five years imprisonment and/or a fine.  He referred to the case of Glancy, and observed that the maximum punishment available (four years imprisonment) did not prevent it being concluded that the relevant burden was a legal one. That was indicative of the level of punishment available not being such as should tip the balance against a legal burden being imposed in the present case. 

[13]      In any event, even if the sheriff had misdirected the jury regarding the burden on the accused, there had been no miscarriage of justice on the facts of the present case.  It could not, he submitted, be concluded that the appellant’s conduct was reasonable.  The police officers were in front of him; at least one of them was in uniform;  they had been shouting “police”;  the incident occurred at about 11 o’clock in the morning;  the appellant had repeatedly been told to put his sword down but had failed to do so;  one police officer had been preparing to use his CS spray;  the appellant had, throughout the incident, been shouting and swearing incoherently.  None of his conduct could, on any view, be classed as having been reasonable.  The appeal should, accordingly, be refused.

Discussion and decision
Whether self defence available?
[14]      Section 38(1) is often loosely referred to as being a “statutory breach of the peace” but as the advocate depute accepted, there are significant differences between the two offences.  The reason for the association of one with the other is obvious but the present issue regarding self defence illustrates why it is important to recognise that section 38(1) is not simply a statutory embodiment of the common law offence. 

[15]      It is, we consider, important to remember that it is clear from the structure of the statutory provision that the crime has three distinct elements.  It is committed if (i) the accused behaves in a threatening or abusive manner, and (ii) his conduct would cause a reasonable person to suffer fear and alarm, and (iii) he intended his conduct to cause fear and alarm or he was reckless as to whether or not it would do so.  We do not accept that the special defence of self defence could have any relevance to parts (i) or (ii).  Whilst there may seem to be some initial attraction in the proposition that it could be relevant to mens rea - part (iii) - we conclude that that cannot be right.  There are two reasons for that.  First, it seems to us inevitable that if a person conducts themselves in a manner which accords with the descriptions in parts (i) and (ii) and the reason for him doing so was that he was acting in self defence in the sense that he genuinely thought he was in danger, he is bound to have intended to cause fear and/or alarm to his assailant.  However cogent the case of self defence might be, it could not, accordingly, prevent part (iii) being established.  Secondly, the statutory defence afforded by section 38(2) is plainly wide enough to cover all and anything that an accused person may wish to advance to the effect that he was in fact acting in self defence.  Further, when doing so, it would not be necessary for the accused to meet all the requirements of self defence that apply when pled as a special defence.  The availability of a reasonable alternative means of escape from the danger would not, for instance, deprive him of the defence.  There would be no prejudice to the accused in directing him to section 38(2) if he seeks to raise any issue of self defence.  He may in fact be in a better position than if he were constrained by the requirements of the special defence. We are satisfied that the relevant statutory intention clearly was that that is where any such issue should be raised.

[16]      Accordingly, we reject the first ground of appeal; the sheriff did not misdirect the jury when he told them that the special defence of self defence had no relevance to the second charge.

Burden of proof – sec 38(2)
[17]      The presumption of innocence is precious and ought not to be dispensed with lightly.  Article 6(2) of the Convention, in providing that everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law, recognises that.  The presumption is not, however, absolute.  Limited inroads may be justified. 

[18]      So it is that, where a statute which provides an accused person with a defence to a statutory charge - such as section 38(2) - involves placing a burden on an accused person, an issue arises as to the nature of that burden.  Is the onus reversed so as to require the accused to prove the matter referred to on a balance of probabilities (often referred to as a “legal burden")?  Or, need he only raise the issue in evidence (often referred to as an “evidential burden”)?  The imposition of a legal burden obviously involves a far more serious interference with the presumption of innocence than if he only requires to put some evidence before the court – in which case, any interference with the presumption, whilst not illusory, is of far lesser order.   

[19]      Where, as here, it is contended that a legal burden is imposed, the Crown requires, accordingly, to show justification for its imposition;  the legislative interference involved must not be greater than necessary.  The appropriate way to approach resolution of the issue has been discussed in the helpful analysis of the relevant authorities by Lord Menzies in paragraphs 19 – 22 of the opinion of the court in Adam v HMA 2013 JC 22 and we would adopt it. 

[20]      On that analysis, it is necessary to consider (i) the relevant statutory provisions, (ii) the activity prohibited and the measures directed at it by the statute, and (iii) bearing in mind the context set by (i) and (ii), what justification there may be for a departure from the presumption of innocence, balancing the interests of the public and the fundamental rights of the accused. 

[21]      Regarding the terms of the relevant provisions, we consider that the language used in section 38(2), whereby the accused has “to show” not “to establish” or “to prove” that his behaviour was reasonable, supports the conclusion that the burden is but an evidential one.  

[22]      Regarding the activity prohibited, we consider that the nature of the offence created by section 38(1) does not obviously support the imposition of a legal burden.  The spectrum of behaviour potentially covered by its provisions is so wide that it cannot be said that it falls to be read as having been enacted to deal with serious mischief or activities involving a serious risk of physical harm, unlike, for example, the statutory offences in relation to the carrying of bladed or other offensive weapons (Criminal Law (Consolidation) (Scotland) Act 1995 section 47(1A) and 49(4)), dangerous dogs being out of control in public places (Dangerous Dogs Act 1991 section 3) and the possession and control of indecent photographs of children (Civic Government (Scotland) Act section 52A(1) and (2)), where it has been held that the statutory defences  available in each case place a legal burden on the accused. 

[23]      Turning to whether the Crown has shown justification for tipping the balance in favour of a legal burden when weighing proportionality, the Crown contends that justification can be found under reference to the circumstances of the present case.  They were said to illustrate that the defence is within the category of defences that relate to matters likely to be so closely conditioned by the accused’s own knowledge or state of mind at the time that to require him to prove them on a balance of probabilities does not infringe the presumption of innocence beyond reasonable limits:   Sheldrake v DPP;  Adam v HMA;  McMurdo v HMA.  The contention is that, in such circumstances, the Crown is likely to face particular difficulty in displacing the defence if a legal burden is not imposed.  To put it another way, the Crown is likely to encounter difficulties which can only be overcome by the imposition on the accused of a legal burden.

[24]      We are not persuaded that the section 38(2) defence falls within that category.  Our principal reason is that the essence of the defence is that the accused behaved reasonably in all the circumstances; the assessment of reasonableness is an objective matter and not, of itself, amenable to proof.  The defence may be asserted without the introduction of any evidence that is independent of the Crown case.  That would, in fact, be the paradigm case. Section 38(2) does not itself add any new ingredient.  Also, whilst it would be open to the accused to rely on some other factor, his doing so has not been envisaged by Parliament as being central to the defence.  That is unlike, for example, the defence in section 3(2) of the Dangerous Dogs Act 1991 where the accused requires to prove not only that the dog was in the charge of another person at the material time but also that that person was one whom he had reason to believe was a fit and proper person to undertake that responsibility.  That defence is, as it was put in Sheldrake “so closely conditioned by the accused’s own knowledge and state of mind” that it was considered to be reasonable and proportionate to interpret the statutory defence as imposing a legal burden. 

[25]      Turning to the level of sentence, we accept that it may be relevant to proportionality.  The nature and extent of the possible sentence may be important when evaluating the reasons advanced by the Crown in support of its contention that, absent a legal burden, the public interest will be prejudiced to such an extent that its imposition is justified.  The more serious the available punishment, the more compelling will the justification for imposing a legal burden require to be:  Lord Nicholls of Birkenhead in R v Johnstone, paragraph 50.  If, for example, the maximum sentence is life imprisonment, that would weigh very heavily indeed in the proportionality exercise, against the imposition of a legal burden.  But it would, we consider, be false logic to suggest that where the maximum sentence is comparatively low, that will weigh in its favour.  We consider that, in those circumstances, the sentence point will be neutral.  It is not a matter of comparative arithmetic.  The accused will still be facing the possibility of punishment.  We, accordingly, do not find the maximum sentence in the present case (five years) supports the contention that a legal burden is imposed.

[26]      As regards the Crown’s reliance on the case of Glancy, whilst the maximum sentence there was, as a matter of fact, four years, that was not the reason for the conclusion that a legal burden was imposed; in fairness to the advocate depute, he appreciated that.  Ultimately, the point was no more than that the fact of a four year maximum sentence did not prevent it being concluded that a legal burden was imposed. 

[27]      In all these circumstances, we are not satisfied that section 38(2) imposes a legal burden on an accused person; the sheriff did, accordingly, misdirect the jury regarding this matter.

Miscarriage of justice
[28]      We turn then to the question of whether or not the sheriff’s misdirection led to a miscarriage of justice.  The relevant evidence was as summarised by the advocate depute: see paragraph 13 above.  In these circumstances, we consider that if the police evidence was accepted – as it must have been – looking at matters objectively, the accused’s behaviour could not, on any view, be characterised as having been reasonable.  He could not reasonably have thought that he was dealing with intruders or was otherwise in need of defending himself.  In these circumstances, notwithstanding the sheriff’s misdirection, there has been no miscarriage of justice and the appeal is accordingly refused.