Scottish High Court of Justiciary Decisons

APPEAL COURT, HIGH COURT OF JUSTICIARY

[2016] HCJAC 124

HCA/2016/000045/XC

Lord Justice Clerk

Lord Menzies

Lady Clark of Calton

OPINION OF THE COURT

delivered by LADY DORRIAN, the LORD JUSTICE CLERK

in

APPEAL AGAINST CONVICTION AND SENTENCE

by

MOHAMMED ABBOUD

Appellant

against

HER MAJESTY’S ADVOCATE

Respondent

Appellant:  F Mackintosh, Faculty Services Limited, Edinburgh for Neil Barnes, Solicitor, Glasgow

Respondent:  A Brown, QC, AD; Crown Agent

20 September 2016

[1]        In this case the appellant complains that the use by the trial judge of the word “assassin” in giving an example of a deliberate intention to kill, coupled with reference to the terrorist attacks in Paris on 13 September 2015, showed a lack of impartiality on the part of the trial judge and led to an unfair trial.  The trial judge explained that an example of a deliberate intention to kill was “the hired assassin who goes with a loaded shotgun and deliberately shoots at someone to kill them”.  He added that the terrorists in Paris who had shot people in the streets and in restaurants clearly had a deliberate intention to kill.  The grounds of appeal state that (a) the word “assassin” originally referred to a member of an 11^th century Islamic sect, known for murdering political and religious adversaries;  and (b) that the suspected ringleader in the terrorist attacks was called Abdelhamid Abaaoud.  The argument relies on the fact that the appellant is called Abboud, that he is a 57 year old bearded man of Iraqi extraction, and that the trial took place only a few weeks after the terrorist attacks in Paris, the ringleader of which shared a similar name.  The use of the word “assassin” and the similarity in name (which was not mentioned in the charge) provided a linking by way of example which was likely to remind the jury of the appellant’s racial background in a potentially negative way.  It was not necessary for the trial judge to give any kind of example.  Notwithstanding that there was a strong evidential case against the appellant, the examples given by the trial judge were suggestive of bias, and could have been understood in that way by the jury.

[2]        The passage complained of occurs where the trial judge is explaining to the jury the difference between murder arising from a wickedly deliberate intention to kill and murder arising from wicked recklessness.  It is only one instance of the trial judge using an example to illustrate his meaning.  At page 31 he gives an example of acts which were caused accidentally or carelessly, and thus could not constitute the crime of assault.  There are others.  There is nothing wrong with a trial judge using examples to illustrate his directions, and whether to do so, or the extent to do so, is a matter for the trial judge.

[3]        The situation is quite different from those cases, cited in argument, where the trial judge commented unfavourably on the failure of an accused to say anything about a special defence at judicial examination, or made a remark which directly appeared to be an adverse comment on the credibility of an accused.  It may be closer to the case in which the complainers were referred to as “victims” but it is of course much more remote from the factual background.

[4]        The circumstances of the examples given by the trial judge were far removed from the actual circumstances of the case.  This case was one of a domestic killing in rural Perthshire.  It involved the murder by stabbing of the former domestic partner of the appellant.  In our view it cannot be said that the words used by the trial judge were such as would be likely to create in the minds of reasonable individuals the suspicion that the trial judge might not be impartial.  The word assassin no doubt had its origins in the alleged hasish-taking activities of an 11^th century Middle Eastern sect, but its modern usage, and the resonance it would be likely to have for the jury, relates to a hired killer, which was clearly the context in which the trial judge was using it.  The events in Paris were simply a recent, well-known example of circumstances showing a clear intention to kill, and thus a suitable example for illustrative purposes.

[5]        The trial judge gave the jury very clear directions against the danger of speculation, warned them that their verdict required to be based on the evidence only, and gave them an entirely balanced charge, in respect of which there is no other complaint made.  The trial judge firmly advised the jury that the assessment of the evidence, and the drawing of inferences therefrom was entirely for them; that they were not allowed to speculate;  that it was no part of his function to suggest that the jury should take any particular view of the evidence;  and that it was accordingly their recollection, not his or anyone else’s, which must prevail.  In addition, he added this:

“You are required to approach your task calmly and objectively, and not be affected by any feelings of prejudice, sympathy or revulsion.  You have to put out of your minds any revulsion you may have about the crime which is alleged to have been committed in Charge 1, the crime of murder, and any feelings of sympathy you may have, whether that be for the deceased, the accused or any other person…  What you must do, ladies and gentlemen, is to act in obedience with your oath or affirmation to well and truly try the accused and give a true verdict according to the evidence.”

[6]        There is no other aspect of the charge which is complained of, and in our view the argument that the jury might have been influenced in the way suggested is fanciful.  The appeal will therefore be refused.