Scottish High Court of Justiciary Decisons

APPEAL COURT, HIGH COURT OF JUSTICIARY

[2015] HCJAC 29

HCA/14-1783/XC

Lady Paton

Lady Smith

Lord Brodie

OPINION OF THE COURT

delivered by LADY PATON

in

APPEAL AGAINST CONVICTION AND SENTENCE

by

JAMES DUFFY

Appellant;

against

HER MAJESTY’S ADVOCATE

Respondent:

Appellant:  CM Mitchell;  Paterson Bell, Edinburgh

Respondent:  A Brown QC, AD;  Crown Agent

18 March 2015

Introduction
[1]        On 14 March 2014, after a trial in Glasgow Sheriff Court, the appellant was found guilty by majority verdict of the following offence:

“On 1 April 2012 at Elizabeth Street, Glasgow you … did assault Richard Watson … and did repeatedly strike him on the head and body with a knife or similar instrument to his severe injury, permanent disfigurement and to the danger of his life.”

On 4 April 2014 the appellant was sentenced to an extended sentence of eight years, back-dated to 14 March 2014, comprising a custodial term of five years and an extension period of three years.

[2]        The appellant appeals against conviction and sentence.

Grounds of appeal
[3]        Three grounds of appeal have passed the sift.  The first relates to directions given concerning the evidence of Constable Dick, who stated that the appellant told him that he had “fallen”.  The second ground of appeal concerns the lack of directions relating to provocation.  The third ground challenges the sentence as excessive.

Circumstances of the offence
[4]        The appellant lodged a special defence of self-defence, but did not give evidence.  No evidence was led on his behalf.  The Crown led evidence, and relied upon (i) the complainer Richard Watson, and (ii) a CCTV recording from a security camera, to provide corroborated evidence of the incident.

[5]        The evidence disclosed that on 1 April 2012 the appellant was playing pool in a pub in Elizabeth Street, Glasgow.  He had an argument with the complainer concerning the latter’s girlfriend.  As the sheriff (Sheriff J K Mitchell) notes in his report at paragraph [26]:

“[The complainer] recollected an argument with the appellant over a pool cue.  He had made some comment that the appellant had got beaten at pool by a girl, namely the complainer’s girlfriend.  The complainer did not recollect the appellant giving his girlfriend a kiss, as was suggested to him in cross-examination.  The complainer accepted that he was up for a fight …”

[6]        Both men were asked to leave.  The appellant left first.  The complainer then left.  In his evidence, the complainer stated in terms that it was his intention “to go out and get” the appellant (paragraph [26] of the sheriff’s report).  Once outside, the complainer saw the appellant and walked towards him.  The appellant for his part walked towards the complainer.  They started fighting.  Parts of the fight were recorded by the security camera positioned outside the pub. 

[7]        Initially the complainer, who was employed as a security officer at a jobcentre, appeared to have the upper hand.  As the sheriff notes:

“[27] The complainer accepted that, in the course of the fight, he knocked the appellant to the ground and that he repeatedly punched and kicked him to the head and body.  The complainer accepted that he weighed 14½ stone and was on top of the appellant.  The complainer stated that he was pretty disgusted by his own behaviour …”

[8]        At some stage in the struggle, a knife came into the appellant’s hand.  The complainer, when giving evidence, was adamant that he did not have a knife with him (sheriff’s report paragraph [26]).  The provenance of the knife was never finally established.  What was clear, however, was that the only person who used the knife was the appellant:  for while the appellant emerged from the fight with considerable bruising, black eyes, a suspected fracture of the right cheekbone, and two small lacerations (one to his right index finger), the complainer, who “ … did not realise that he had been stabbed until his girlfriend started screaming” (sheriff’s report paragraph [27]), was subsequently found to have suffered (i) a 5 cm incised wound to his head;  (ii) a laceration to the left side of his face, running from his left eye down his cheek;  (iii) a puncture wound to his left ear;  and (iv) seven stab wounds to his back, six to the left side (each 1 cm wide), and one to the right side (1.5 cm wide).  The complainer’s evidence was that, after the two men separated, the appellant shouted “Look at the state of you now, you fucking daftie” (sheriff’s report paragraph [27]).

[9]        The appellant subsequently met Constable Dick.  The appellant was “badly bruised to the face and bleeding, with his clothes bloodstained” (sheriff’s report paragraph [18]).  According to the officer’s evidence, the appellant said that he had fallen.

Speeches and charge to the jury
[10]      In their jury speeches, neither the procurator fiscal nor the defence solicitor mentioned the option of a verdict of guilty under provocation.  We were advised that the defence solicitor had taken an understandable tactical decision based on the fact that the jury might not react well to a fallback position, namely “esto the appellant was guilty of assault, he acted under provocation”.  It was felt that a straightforward denial of assault, with actions attributable to self-defence, was preferable.

[11]      The procurator fiscal, in her jury speech:

“ … referred to the fact that at no stage did the appellant report to the police that he had been assaulted.  She made the point that the appellant did not report to the police that he was a victim of a crime of violence when he met PC Dick (sheriff’s report paragraph [19])”

The defence solicitor, in his jury speech, commented that he was surprised that the fiscal had said what she had, and emphasised that the appellant did not need to say anything to the police.

[12]      In the course of his charge, the sheriff gave the jury directions inter alia about credibility and reliability (pages 10-13 of the transcript);  self-defence (pages 28-33); the sources of evidence which, if accepted, could provide corroborated evidence, namely the complainer’s evidence and the security camera recording (page 38);  and at pages 38-43, continued as follows:

“What you’ve got are other surrounding facts and circumstances, which you are entitled to take into account.  These individual facts and circumstances are not corroboration.  But what they are, are facts and circumstances which, if you accept them, may throw some light on what the proper interpretation is to take from the evidence, whether you should accept Mr Watson’s account as being credible and reliable.  And the other facts and circumstances are, some of them are set out in the joint minute.…

When the accused came to … the close in Elizabeth Street where Mr Dick was on duty, he was asked why he was there.  And according to Mr Dick’s unchallenged evidence, he said he had fallen.  Now, it’s not corroboration of his guilt, but why would the accused say he had fallen to the police officer at 9.20 at night?  Why would he do that?  Does that assist you in any way in deciding whether the evidence of Mr Watson should be accepted, about what he says happened, and whether his evidence has been corroborated to a sufficient degree to satisfy you beyond reasonable doubt of the accused’s guilt by what you’ve seen on the DVD tapes [the security camera recording], shown to you in court?

These, ladies and gentlemen, are matters for you.  If there’s, you accept Mr Watson’s account but you do not accept the interpretation which the procurator fiscal has asked you to place upon Crown Label Number 1, [the security camera recording], then, ladies and gentlemen, there is insufficient evidence in law and you must acquit the accused.  The Crown case depends upon you accepting Mr Watson’s evidence and finding it to be supported or confirmed by what is depicted in the DVD, namely, that at the time, …the accused was not acting in self-defence.  Mr Paterson [the defence solicitor] has asked you to consider what he has said, that in his submission there points to a compelling reason why you should acquit the accused, and you’ll recollect what was said by him to you just before I started speaking to you.

In the event, ladies and gentlemen, [if] you are left with a reasonable doubt as to the truth of the special defence, or as to the accused’s guilt, then, as I’ve told you, there cannot be any doubt what you must do:  you must return a verdict of acquittal.

Ladies and gentlemen, just to be absolutely clear about two further points, Mr Paterson was quite correct to say to you that you cannot draw any inference of guilt from the accused not saying anything to the police.  That’s his right.  I may be mistaken, but I think what the fiscal was asking you to do was not to draw any inference of guilt from that.  She was remarking on the fact that at no time did he suggest that he had been assaulted, or anything.  I think that’s the point that was being made.  But it is correct to say you cannot draw any inference of guilt from the accused not saying anything to the police.  But what the procurator fiscal said to you, ladies and gentlemen, about what he did say to the police, something you are certainly entitled to consider, if you accept the evidence of the constable.  Why did the accused say that, and does that thrown any light on your general consideration of the evidence and the conclusions which it is proper to draw on the evidence?

Now, there can be no question, ladies and gentlemen, of corroboration by false denial.  In the event that you were to hold that the accused said to the police officer, Mr Dick, that he had fallen, that does not mean that in some way, ladies and gentlemen, his case has changed and you can find some sort of corroboration because he has changed his position.  You cannot do that and I want to make that absolutely clear to you.  Before you can find the accused guilty, you must accept Mr Watson as a credible and reliable witness.  You’re bound to accept what’s in the joint minute.  You must also accept the interpretation of the DVD, Crown Label 1, which the Crown has invited you to do.”

[13]      In relation to the appellant’s conversation with Constable Dick, the sheriff explained in his report (paragraph [20]):

“As one of the surrounding facts and circumstances mentioned by the prosecutor in her speech had been challenged by the appellant’s solicitor, I considered that it was necessary for me to give legal direction on how the jury should approach this part of the evidence …”

[14]      The sheriff did not give directions on provocation, for the reasons given in paragraphs [28] and [34] of his report:

“[28] In these circumstances and against that background, I considered that for me to give a direction which had not been sought by the prosecutor or by the appellant’s solicitor would have been prejudicial to the appellant, who was asserting his innocence of the charge.  To have given a direction on provocation would have been to invite the jury to consider an issue not put to them on behalf of the appellant and upon which the jury had not heard any submission from [the defence solicitor].  I considered that there was a real risk that to direct upon provocation would undermine the carefully constructed submission advanced by the appellant’s solicitor which was designed to secure acquittal on the basis of self-defence.  Moreover I was doubtful whether, on any view of it, the evidence was capable of supporting the four qualifying circumstances of provocation.  I refer to this at paragraph [34] below

…

[34] One of the four qualifying circumstances of provocation is that the violence of the retaliation is broadly equivalent to the violence the accused faced.  If there was gross disproportion between the violence used by the appellant and the violence which prompted it then provocation is excluded.  Had I felt able to consider the matter of provocation, I would have held that there was no provocation.  The appellant used a lock knife (Crown Label number 4).  He repeatedly stabbed the complainer.  In my view, there was gross disproportion between the appellant’s violence and the violence which prompted it.  I attach significance to the fact that the violence which prompted it resulted from a fight into which both men entered and to the nature and extent of the injuries sustained by each of them …”

Submissions for the appellant
Directions concerning the evidence of Constable Dick
[15]      Although the sheriff told the jury that the appellant’s explanation that he had fallen was not corroboration of his guilt, the sheriff had subsequently undermined that direction by inviting the jury to speculate why the appellant had not been candid with the police officer.  The sheriff should not have done so, as the appellant’s explanation could not be used to bolster the Crown case, or to suggest that the complainer’s evidence was truthful.  There had been no “false denial” on the part of the appellant, merely a lack of candour.  Nor had the appellant “changed his position”.  The court ought not to have directed the jury that the interaction between the police officer and the appellant might shed light on the veracity of the complainer’s evidence.  As this was a case where the credibility of the complainer was crucial, the direction constituted a material misdirection.  A miscarriage of justice had occurred, and the conviction should be quashed.

Lack of directions on provocation
[16]      The issue of gross disproportion was one for the jury.  If there was a reasonable evidential basis for the view that the use of a knife in the particular circumstances was not disproportionate, then the issue of provocation should go to the jury (Ferguson v HM Advocate 2009 SCCR 78).  In the present case the complainer might be considered initially to have had the upper hand. The complainer was seen to be holding onto the appellant’s clothing, preventing him from pulling away.  The complainer repeatedly punched and kicked the appellant’s head and body.  At one stage the complainer was physically on top of the appellant, repeatedly punching him on the head.  Cases such as Hadden v HM Advocate [2013] HCJAC 61 paragraph [4] (where the appellant tried to stop an attacker striking him and his girlfriend with a baseball bat by stabbing him repeatedly, but nevertheless “was still getting hit”) illustrated that the number of stab wounds might not be grossly disproportionate if inflicted in an attempt to stop another’s attack.  As the jury were denied the opportunity of returning a verdict of “guilty under provocation” (a verdict, it was submitted, open to them on the evidence), a miscarriage of justice had occurred, and the verdict of guilty should be quashed, for even although the jury would have had to be satisfied of the guilt of the appellant before dealing with the question of provocation (i.e. the jury would have had to consider and reject self-defence, thus finding the appellant guilty of assault) it was not possible to know what the jury would have done had the option of adding “under provocation” been made available to them.  Accordingly the whole verdict was not in accordance with law, and should be quashed.

Sentence
[17]      Counsel’s submissions relating to sentence are reflected in the Discussion section below.

Submissions for the Crown
Directions concerning the evidence of Constable Dick
[18]      The advocate depute submitted that, when the charge was looked at as a whole, the directions concerning Constable Dick did not amount to a miscarriage of justice.  The charge reflected both the defence solicitor’s and the procurator fiscal’s jury speeches, noting that the procurator fiscal had suggested that there were some pieces of evidence which they might wish to consider when assessing credibility and reliability, but endorsing the defence solicitor’s submission that what was said to Constable Dick did not provide corroboration.  There had been no misdirection.

Lack of directions on provocation
[19]      It was accepted that the sheriff erred in thinking that he should not give a direction about provocation because of some perceived prejudice to the defence.  While it was understandable that a judge might have reservations, it was clear (following Ferguson v HM Advocate 2009 SCCR 78, particularly paragraph [35]) that it was a judge’s responsibility to direct a jury about provocation if, on a reasonable view of the evidence, such an option was open to the jury, even although neither the fiscal nor the defence had mentioned provocation.  However it was the advocate depute’s contention that, on a reasonable view of the evidence, the sheriff had been entitled to conclude that he should not give any direction on provocation, because, although three of the four conditions required for provocation might, on the evidence, be regarded as satisfied (i.e. physical attack;  loss of self control;  and instant retaliation), the fourth condition was not, in that it was wholly disproportionate to use a knife in the course of a fight which had hitherto been without weapons:  paragraph [34] of the sheriff’s report.  A judge was entitled to decide, on the evidence, not to give the jury a direction about provocation (cf the approach in Anderson v HM Advocate 2010 SCCR 270 paragraph [18]).  Thus the ground of appeal should be refused.  However if the appeal court took the view that there should have been a direction on provocation, the court was invited to substitute a verdict of guilty of assault to severe injury, permanent disfigurement and to the danger of life, but under provocation.  The question of guilt was not in issue, as self-defence had been rejected:  what was in issue was the degree of guilt.  Moreover the offence occurred some time ago (2012).  Accordingly the Crown’s preferred position was the substitution of a verdict “under provocation” (rather than the quashing of the verdict and an application for a fresh trial), even although the approach of a jury in a fresh trial could not predicted with any certainty.

Discussion

The appellant’s statement to Constable Dick 

[20]      We accept that the sheriff had to deal with the appellant’s conversation with Constable Dick, as the procurator fiscal had referred to it in her jury speech, resulting in the defence solicitor also referring to it in order to rebut any mistaken inference of guilt.  The sheriff’s charge did not state that the appellant had “changed his position”, and moreover, when read as a whole, the charge left the jury in no doubt that the conversation could not be treated as corroborative of the complainer’s account.   Nothing detracted from the sheriff’s clear directions relating to credibility and reliability (pages 10-13) and relating to the evidence which, if believed, could provide corroborated evidence (page 38).  In the result, we are not persuaded that any misdirection or miscarriage of justice occurred, or that there is any merit in this ground of appeal.

Provocation
[21]      As was made clear in Ferguson v HM Advocate 2009 SCCR 78, a judge’s function when charging the jury is not “fenced by the way the case is presented to the jury by both or all parties” (paragraph [35]).  On the contrary, it is for the judge to give the jury such directions in law as are necessary for their guidance “on a reasonable view of the evidence”:  Ferguson paragraph [35].  Thus it may be that a charge should include explanations about, for example, the option of returning a verdict of culpable homicide to a charge of murder if evidence about provocation were to be accepted, or the option of returning a verdict of “guilty of assault under provocation”, again if evidence about provocation were to be accepted, even although provocation and its effect had not been mentioned by the Crown or the defence. 

[22]      Whether the use of a knife in what appeared to be a fist-fight is disproportionate will generally, in our view, depend upon the particular facts of the case.  There may be circumstances in which a reasonable jury might conclude that the use of a knife was not grossly disproportionate, and accordingly that if the other three elements of provocation (namely physical attack, loss of self-control, and immediate retaliation) were proved to their satisfaction, the rider of provocation should be added.  It is very much a question for the jury.  Applying the approach set out in Ferguson, it is our opinion that only if a court were able to conclude that no reasonable jury could, on the evidence, reach the view that there was provocation, should directions on provocation be omitted.  

[23]      In the present case, the complainer gave evidence that he was employed as a security guard, and that he weighed 14 ½ stone.  He acknowledged that his intention was “to go out and get” the appellant.  He stated in the witness-box that he was “pretty disgusted by his own behaviour”.  These were matters which the jury would require to take into account.  Further, the CCTV recording showing parts of the fight might, in our view, lead a reasonable jury to conclude (i) that the complainer was giving the appellant a sustained beating consisting of repeated and forceful punches and kicks to the head and body, often detaining the appellant by holding onto him or his clothing, or by pinning him to the ground such that the appellant could not escape;  and (ii) that the appellant was no match for the complainer in a fist-fight.  In these particular circumstances, it seems to us that there was a possibility that a reasonable jury might have considered the use of a knife as proportionate, depending upon their assessment of the evidence about when the knife was used, in what circumstances, and for what purpose.  In the present case, as there was evidence which, if accepted by the jury, could satisfy the other three requirements of provocation, there was, in our opinion, a requirement to give the jury directions about provocation, such that they could add the rider (or not) as they thought fit. 

[24]      We accept that the lack of such directions has resulted in a miscarriage of justice, whether that issue is assessed in terms of the test in McInnes v HM Advocate 2010 SC (UKSC) 7, 2010 SCCR 286, (“a real possibility that the jury might reasonably have come to a different verdict”) or Brodie v HM Advocate 2013 JC 142, 2013 SCCR 23 (a more flexible test, as set out in paragraphs [40]-[43]).  However we agree with the advocate depute that what is in issue in this appeal is not the question of guilt (as the jury must have rejected the special defence of self-defence, and must have concluded that the appellant was guilty of assault with the aggravations noted in paragraph [1] above) but the degree of guilt.  We therefore accept his submission that the appropriate disposal of the appeal against conviction is to allow the appeal, but to substitute for the existing conviction a conviction in identical terms for assault to severe injury, permanent disfigurement and danger of life, but with the rider “under provocation”.

Sentence
[25]      As we intend to substitute a verdict of guilty under provocation, the question of sentence falls to be re-assessed.  Counsel submitted that the appellant had a limited record of convictions:  assault (April 1996, when aged 16, resulting in a sentence of two months in a Young Offenders Institution);  breach of the peace (October 1996 for which he was admonished);  possession of an offensive weapon, namely a stick (December 1997, 150 hours community service);  urinating in a public place, contrary to section 47 of the Civic Government (Scotland) Act 1982 (1999, a fine);  possession of diazepam, and an attempt to pervert the course of justice (2007, resulting in a deferred sentence and fines).  The appellant had not been in trouble for about five years.  On the evening in question he was not looking for violence.  The circumstances of the offence were such that, for the most part, the appellant might in ordinary course be deemed to be the complainer.  The provenance of the knife was not established.  The criminal justice social work report recorded the appellant’s difficult background, attributable to an unstable family unit.  Paragraph 9 noted that:

“Mr Duffy has emerged from a disrupted and traumatic family background with a range of difficulties with substances, emotional health and wellbeing, relationships and family supports.  It is evident that he has continued to experience a distinct lack of stability and structure in adulthood and it is perhaps to his credit that this has not been accompanied by significant offending … Mr Duffy accepts that his decision in relation to over-indulging in alcohol was a factor in the index offence …”

While the report further noted “his failure to accept responsibility for his actions and behaviours, as well as a lack of empathy for those he has offended against”, counsel submitted that any apparent lack of remorse in the present context was perhaps understandable, bearing in mind how the dispute started, and the repeated punching and kicking which the appellant had undergone.  Photographs of the appellant were referred to, demonstrating bruising and black eyes.

[26]      While acknowledging the force of counsel’s submissions, accepting that the provenance of the knife was never established, and taking into account the new rider of “under provocation”, we must reiterate the court’s deep concern about, and abhorrence of, knife crime, and also take account of the nature and number of knife wounds suffered by the complainer resulting in the conviction of assault to severe injury, permanent disfigurement, and danger of life.  We also note that there would be a focus for a supervised release order, including (as set out in paragraph 8 of the report) participation in offence-focused work, and monitoring of alcohol and drug use.  In all the circumstances we are minded to quash the extended sentence and to substitute therefor a custodial sentence of three years together with a one‑year supervised release order.

Decision
[27]      For the reasons given above, we allow the appeal against conviction and sentence.  We quash the conviction as it stands, and substitute therefor a conviction in identical terms backdated to 14 March 2014 but with the rider “under provocation”.  We also quash the extended sentence and substitute therefor a custodial sentence of three years together with a one‑year supervised release order.