Scottish High Court of Justiciary Decisons

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URL: http://www.bailii.org/scot/cases/ScotHC/2020/2020_HCJAC_55.html
Cite as: [2020] ScotHC HCJAC_55, 2021 GWD 2-24, 2021 SCCR 1, 2021 JC 33, [2020] HCJAC 55, 2021 SLT 170

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Lord Malcolm

Lord Turnbull

Lord Pentland

APPEAL COURT, HIGH COURT OF JUSTICIARY

[2020] HCJAC 55

HCA/2019/000262/XC

OPINION OF THE COURT

delivered by LORD MALCOLM

APPEAL AGAINST CONVICTION

DAVID DITCHBURN

against

HER MAJESTY’S ADVOCATE

Appellant: C Fyfe (sol adv); Bruce & Co (Arbroath)

Respondent: A Edwards QC, AD; Crown Agent

Appellant

Respondent

29 January 2020

[1] At the High Court sitting at Edinburgh on 15 May 2019, the appellant was found

guilty on four charges, including charge 5, which was in the following terms:

“On 9 or 10 August 2018 at Flat 2, 12 Brunswick Road, Edinburgh you

DAVID CAMERON DITCHBURN did assault John Ashwood and did strike him on

the head to his severe injury and you did kill him; you DAVID CAMERON

DITCHBURN did commit this offence while on bail, having been granted bail on 16

July 2018 at Edinburgh Sheriff Court.”

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The grounds of appeal

[2] The appellant appealed against that conviction on the basis that the trial judge

misdirected the jury in relation to the definition of culpable homicide as it applied to that

charge. The trial judge wrongly introduced to the jury the possibility of a guilty verdict

based upon the appellant’s “reckless or grossly careless” conduct ; the Crown case having

been one confined to a deliberate assault upon the deceased, and the defence having been

conducted upon that basis. Both the trial judge and the respondent concede that the

directions complained of were misdirections in law. The issue in the appeal was whether

they were material in the sense of having caused a miscarriage of justice.

The circumstances of the case

[3] At the trial a third party spoke to a small argument between the appellant and the

deceased, and to the appellant punching the deceased on the side of his head. Elsewhere in

his evidence this was described as “a wee slap”. The appellant gave evidence to the effect

that the deceased had started picking on the said man, to whom he became aggressive. The

appellant intervened and the deceased landed a punch on the side of his jaw. In return he

slapped the deceased with his left hand to the right side of the deceased’s jaw. All three

men sat down. Subsequently the deceased slumped off his seat and fell to the floor. There

was no apparent injury but blood was coming from his mouth. Another person arrived and

phoned for an ambulance. The following day the appellant told this person “I think I’ve

killed him”, referring to the deceased. In her report the trial judge states:

“In essence, the appellant accepted that he caused the injury to John Ashwood’s

mouth but stated that he was acting in self-defence in the sense of defence of his

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friend ... and that he did not intend to cause any serious injury far less death to

Mr Ashwood.”

The jury heard expert medical evidence to the effect that complications of blunt force mouth

injury were just one element in a multi-factorial death. The circumstances were somewhat

unusual in that the assault was not, in itself, likely to cause a fatality.

The trial judge’s report

[4] In her report the trial judge states that she directed the jury on the issue of self-

defence, and on the requirements for the crimes of assault and of culpable homicide. If self-

defence was rejected, in order to convict the appellant of culpable homicide the jury would

have to be satisfied that an assault committed by the appellant was a material or significant

contributory factor in the death. In the event the jury must have proceeded upon that basis.

She advises that physical contact between the appellant and the deceased was no t in

dispute, but the nature of the intention, the mens rea, was contentious. She gave the jury the

standard directions on culpable homicide from the jury manual. The options for the jury

were:

1. accept the defence of self-defence and acquit the appellant;

2. reject the defence of self-defence but find that any assault had not materially

contributed to the deceased’s death; or

3. reject the defence of self-defence and find that the appellant assaulted the

deceased and that the assault was a material cause of the deceased’s death.

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The charge to the jury

[5] There is no criticism of the charge to the jury in respect of self-defence, nor as to the

crime of assault, which was correctly described as consisting of “a deliberate attack on

another person.” The appellant’s complaint can be illustrated by reference to the following

passage at page 32 in the transcript of the charge.

“Culpable homicide is causing someone’s death by an unlawful act which is culpable

or blameworthy. It is killing someone where the accu sed did not have the wicked

intention to kill and did not act with such wicked recklessness as to make him guilty

of murder. The unlawful act must be intentional or at least reckless or grossly

careless. Recklessness or gross carelessness means acting in the face of obvious risks

which were or should have been appreciated and guarded against, or acting in such

a way which shows a complete disregard for any potential dangers which might

arise. ... To convict of culpable homicide, you would need to be satisfied of the

following: one, that David Ditchburn committed an unlawful act – in this case the

act alleged is assault; secondly, that act must have been int entional or reckless or

grossly careless in the sense I have defined; and thirdly, that John Ashwood’s death

was a direct result of the unlawful act.”

The submissions

[6] It was common ground that during the trial there had been no reference to

recklessness or gross carelessness, nor in the defence and Crown speeches. The topic was

introduced for the first time in the judge’s charge. For the appellant it was submitted that, in

the whole context of the case, the jury could only convict on the basis of an assault causing

death, something which would necessarily involve deliberate conduct on the part of t he

appellant. The concepts of recklessness and gross carelessness introduced by the judge were

not relevant to the crime libelled. Page 33 of the charge records that the jury was directed as

follows:

“Now, I want to look at these elements in turn, but taking the first two together –

that’s assault and intention, recklessness or gross carelessness. I’ve already given

you the definition of assault. So, first, on charge 5 you must decide whether it’s been

proved to your satisfaction that David Ditchburn struck John Ashwood deliberately

and with the necessary intention or recklessness.”

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The earlier correct definition of assault as a crime of intent was contradicted in a manner

which, whatever else, was confusing. In addition to the passage already quoted in

paragraph [5] above, there was a similar misdirection at page 36 of the charge. It is a

realistic possibility that the appellant was convicted upon an erroneous basis as to the

necessary mens rea. It follows that the misdirection was material and productive of a

miscarriage of justice.

[7] The Crown urged that the charge be viewed as a whole. The passages complained of

should be read in the context of the evidence, speeches and the issues at the trial. Whether a

misdirection amounts to a miscarriage of justice is a matter of fact and degree; McPhelim v

HMA 1960 JC 17. Minor deviations from standard formulae would not normally be

regarded as productive of a miscarriage of justice, if the directions on a particular topic are,

when the charge is read as whole, clear and correct: Sim v HMA 2016 JC 174 Lord Justice

General (Carloway) at paragraph 32.

[8] It was accepted by the Crown that the reference to recklessness was inappropriate,

and potentially apt to confuse. However the issue for the jury was clearly one of deliberate

assault as a result of which Mr Ashwood died. This was reflected in the charge on the

indictment. The appellant stated that he intentionally struck the deceased, albeit in defence

of another man. The jury would have understood what was required for an assault for the

purpose of charge 5. In the whole circumstances the misdirection did not result in a

miscarriage of justice.

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Decision

[9] The court has no difficulty in preferring the submissions in support of the appeal.

Causing death by reckless conduct, as opposed to an assault, is a separate crime, with a

distinct mens rea. That crime was not charged. As noted above, the judge repeatedly linked

the crime of assault with recklessness and gross carelessness. Those directions could have

caused the jury to convict even though satisfied that the appellant did not assault the

deceased; or that he acted in defence of the other man, but nonetheless behaved recklessly

or with gross carelessness. The judge introduced and by repetition emphasised a new route

to conviction which was outwith the terms of the libel, was not in issue at the trial, and was

not mentioned during either the Crown or defence speech es to the jury. The Crown’s

invitation to conclude that the jury could not have been misled or confused on the key issues

in the trial is rejected. The appeal is upheld, and a new sentence imposed limited to the

convictions on the other charges. (After that was done, the court granted a Crown motion

seeking authority for a fresh prosecution in respect of charge 5.)

Postscript

[10] The court has previously commented upon the importance of bespoke charges

tailored to the particular circumstances of the trial and to the issues which the jury requires

to determine. By way of example reference can be made to McGartland v HMA

[2015] HCJAC 23 at paragraph 31, where it was stated that the manual is no more than a first port

of call providing a useful checklist of points for judges to bear in mind. In the present case

the trial judge lifted the directions complained of more or less verbatim from the manual at

chapter 43, where, in the then current version, the focus was upon distinguishing murder

and culpable homicide. However the crime of culpable homicide can occur in a wide variety

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of circumstances, including, as in this case, when a relatively minor assault contributes to a

death. In Green and Others v HMA [2019] HCJAC 76 (again in the context of the manual as

then drafted), it was observed that, while the manual directions may be correct as a

generality, they are not apt for a death brought about by an assault – see the judgment of the

court delivered by the Lord Justice General (Carloway) at paragraph 66. It is noted that the

manual has been revised to reflect the remarks in Green.