Scottish High Court of Justiciary Decisons

APPEAL COURT, HIGH COURT OF JUSTICIARY

[2015] HCJAC 103

HCA.2015/001380/XC

Lady Paton

Lord Bracadale

Lord Malcolm

OPINION OF THE COURT

delivered by LADY PATON

in

APPEAL AGAINST CONVICTION

by

LAURA LUNN

Appellant;

against

HER MAJESTY’S ADVOCATE

Respondent:

Appellant:  Dow;  Wardlaw Stephenson & Allan

Respondent:  Niven Smith, AD;  Crown Agent

15 October 2015

[1]        The issue in this appeal is whether the sheriff’s charge allowed the jury properly to consider whether or not the appellant had a reasonable excuse for being in possession of an offensive weapon, namely a broken bottle, in a public place, contrary to section 47(1) of the Criminal Law (Consolidation) (Scotland) Act 1995.

[2]        Section 47(1) provides:

“ (1)      Any person who has with him in any public place any offensive weapon shall be guilty of an offence, and shall be liable—

(a) on summary conviction, to imprisonment for a term not exceeding six months or a fine not exceeding the statutory maximum, or both;

(b) on conviction on indictment, to imprisonment for a term not exceeding four years or a fine, or both.

(1A)     It is a defence for a person charged with an offence under subsection (1) to show that the person had a reasonable excuse or lawful authority for having the weapon with the person in the public place”.

[3]        The appellant faced an indictment with four charges, all arising out of an incident on 30 November 2013 in Guthrie Street, Edinburgh.  Read short, charge 1 was a statutory breach of the peace.  Charge 2 was an assault on Elliot Murgatroyd by punching him on the head.  Charge 3 was an assault on Tomasz Skierqa by attempting to punch him, brandishing a broken glass bottle, lunging towards him and attempting to strike him on the body with the bottle.  Charge 4 was having in a public place without a reasonable excuse or lawful authority an offensive weapon, namely a broken glass bottle, contrary to section 47(1) of the 1995 Act. 

[4]        After a trial in which evidence was given by inter alios Mr Murgatroyd, Mr Skierqa and the appellant herself, the jury returned the following verdict.  Charge 1 not proven;  charge 2 guilty under provocation;  charge 3 not proven;  charge 4 guilty. 

[5]        The appellant has appealed only against the conviction in respect of charge 4.  In her note of appeal, the appellant explains that in respect of charge 3, she relied upon the special defence of self-defence, specifically that she was acting in defence of her partner.  The appellant’s position was that she had a reasonable excuse for having possession of the broken glass bottle, having picked it up during the incident and brandished it in defence of her partner who was under attack.  The sheriff had directed the jury that fear of an attack was not a reasonable excuse for having possession of an offensive weapon, but the jury ought to have been directed that self-defence could be a reasonable excuse if an attack was imminent or ongoing.  As a result of the sheriff’s misdirection, a miscarriage of justice had occurred.  But for the misdirection there was a real possibility that the jury might reasonably returned a different verdict.

[6]        The sheriff’s report summarises the evidence.  The appellant and her female companion became involved in confrontation with several men, in particular with Elliot Murgatroyd and Tomasz Skierqa.  At one stage the appellant took a bottle out of a bin.  The bottle fell on the ground and was smashed.  She picked up the broken bottle and brandished it at Mr Skierqa and another man.  The appellant’s evidence is noted at paragraphs [8] and [9] of the sheriff’s report as follows:

“[8]      The appellant gave evidence.  She gave evidence to the effect that she had been in Guthrie Street with her partner (Alexandra Ceolins) in the early hours of 30 November 2013.  There was no argument between them.  She became aware of a male laughing and recording them.  He was being ‘very, very intimidating’ and calling them lesbians.  Another man came up.  He was laughing and making comments towards the appellant and her partner.  He swore at her.  She was scared.  It was all to do with their sexuality.  She was up against a wall.  She had then punched him in the face to defend herself.  She then became aware of what she had thought was Mr Skierqa recording them again on a mobile phone.  She went over to him to get him to stop.  He punched her hard.  She said ‘I ran over to him to stop him from recording.  I just wanted him to stop recording me’.  He then punched her to the floor.  It was sore.  This made her feel ‘absolutely petrified’.  She got up.  Mr Skierqa went to go to her partner.  She thought that the two men were both still recording on their mobile phones.  Mr Skierqa pushed her partner.  She, the appellant’s partner, hit her head off the kerb.  The appellant then went over to a bin about two or three metres away.  She managed to get up into the bin to grab anything.  She told Mr Skierqa to ‘get the fuck away from us now’.  Mr Skierqa had attacked her twice and had attacked her partner as well.  The appellant grabbed a bottle out of the bin.  It fell onto the floor and smashed.  She picked up the smashed part of it and held it while she was walking backwards.  She said that she was walking backwards telling Mr Skierqa to stay away from her and her partner.  She said said ‘Alex (her partner) had got up by this point’.  The appellant told the court that she, the appellant, was then attacked again.  She had had no intention of doing anything.  As she put it ‘it was an attempt to scare him away from us’.  Mr Skierqa then pushed her, the appellant, onto the ground and she hit her head.  She injured her wrist.  She confirmed that she had sustained the injuries shown in defence production 1, which comprised a number of photographs.

[9]        In cross-examination in relation to Mr Skierqa, the appellant confirmed that she had gone towards him to stop him recording.  She was then attacked by him.  He then hit her partner.  She went to look in the bin for anything ‘hopefully to scare him away’.  She told the court that she was ‘petrified….not so much annoyed;  it was fear’.  She was asked if she had been aware that holding a smashed glass bottle was dangerous and she responded ‘I just wanted to frighten him away from my partner’”.

[7]        In speeches to the jury, we understand that while the procurator fiscal invited the jury to reject the defence of reasonable excuse, he did not elaborate in any way on the interplay between charges 3 and 4.  As for the appellant’s solicitor’s jury speech, that is summarised by the sheriff in paragraph 12 of her report as follows:

“[12]    In her speech to the jury, Ms Gibson, solicitor, told the jury that the appellant’s position was that she had been acting in self-defence in relation to charges 2 and 3 but that, in relation to charge 4, the appellant was seeking to rely on the statutory defence of ‘reasonable excuse’, and she told the jury that I would give them directions in relation to this.  She did not elaborate on precisely what she was suggesting constituted the ‘reasonable excuse’ in relation to charge 4”.

In particular, the solicitor did not elaborate upon the interplay between the special defence of self-defence lodged in respect of charge 3 and the question of “reasonable excuse” in respect of charge 4. 

[8]        Had the matter been focused appropriately in the speeches, the advocate depute conceded that no doubt the sheriff would have given appropriate directions.  As it was, the sheriff’s charge was “textbook” and followed the guidelines in the jury manual.  The sheriff sets out in paragraph 18 of her report how she charged the jury:

“[18]    I took the view that it would be appropriate to direct the jury along the lines suggested in the Jury Manual at chapter 54.2.  My direction included the following commencing at page 56, line 6 and concluding at page 58, line 15:

‘If the position is that you are satisfied that the broken glass bottle, however  it came to be broken, if you are satisfied that it was an offensive weapon, the position is that the legislation nevertheless provides that in relation to such…any such allegation, there is a statutory defence.  This has been mentioned by Ms Gibson.  Because you will see an essential part of the offence is that, in line 2, it is said that Miss Lunn “did, without reasonable excuse or lawful authority, have with her an offensive weapon in the form of the bottle.  It’s not suggested here that there was ….that the accused, Miss Lunn, was acting with lawful authority but the defence that is being advanced here is one of what’s called reasonable excuse.  Now, the position is that legislation provides that that can indeed be…in fact, would, if you are satisfied that that is the case…that that would be…indeed would represent a full defence to the charge.  So, in this case the accused is saying that she had a reasonable excuse for having the bottle with her in Guthrie Street at the point in time about which you’ve heard.  Now, proof of that lies on her, in the sense that she has to raise that for your consideration and she has….it means that she has to satisfy you…and it’s on a balance of probabilities;  not beyond reasonable doubt.  But the legislation provides that she has to satisfy you on a balance of probabilities that she had a reasonable excuse for having the bottle with her at that point in time in Guthrie Street.  Now, the reasonable excuse must apply to having the bottle with her in a public place.  As the fiscal said, the intention of the legislation is to deter people from having things that are actually offensive weapons in a public place.  Now, the position is, I have to tell you, that fear of an attack is not a reasonable excuse.  Evidence to support the accused’s position does not need to be corroborated.  If you think that she has proved on a balance of probabilities that she had indeed a reasonable excuse, then you must acquit her.  Now, proof on a balance of probabilities is a lower burden than proof beyond reasonable doubt.  It means more probable, or more likely than not, but is certainly a lower burden than beyond reasonable doubt’”.

[9]        Before us today the advocate depute, in a helpful submission, advised that the Crown had given careful consideration to the appeal, and had come to the view that the appeal was well founded and ought to be conceded.  Partly as a result of the oral submissions today and partly in view of a letter sent in advance of today’s hearing, we understand the Crown’s position to be that taking possession of an offensive weapon in anticipation of or fear of future violence would not constitute a reasonable excuse (cf the Lord Justice Clerk in Grieve v McLeod 1967 JC 32 at page 36).  However matters would be different where a person took possession of a weapon during an incident where he or she was under attack, for the purpose of preventing or discouraging further violence.  It was pointed out to us that the jury manual was based more on the circumstances in Grieve v McLeod, whereas in the circumstances of the present case a more flexible approach was necessary as it was for the jury to decide whom to believe and whom to disbelieve, and at least one of the versions of events which was put before the jury in the course of the trial suggested that the appellant, when under attack and in extremis, had come into possession of the bottle and used it solely to attempt to prevent further attack (cf dicta of Lord Carloway at paragraph [7] of Donnelly v HMA 2009 SCCR 512). 

[10]      For these reasons the advocate depute conceded that there had been a misdirection; that the jury had not been able to form their own view about the evidence which they had heard;  and that a miscarriage of justice may have occurred.  In the particular circumstances of this case, we agree with the submissions advanced by the advocate depute.  We note that the jury manual may require some further refinement.

[11]      In all the circumstances, we shall allow the appeal and quash the conviction on charge 4.