Crawford v H. M. Advocate
| Jurisdiction | Scotland |
| Judgment Date | 22 June 1950 |
| Date | 22 June 1950 |
| Docket Number | No. 14. |
| Court | High Court of Justiciary |
HIGH COURT.
Lord Justice-General. Lord Carmont. Lord Keith.
Procedure—Trial—Special defences—Special defence of self-defence—Distinction between self-defence and provocation—Function of Judge when charging jury.
A son, charged with the murder of his father, pleaded not guilty and stated as a special defence "that on the occasion libelled he was acting in self-defence."
At the trial there was some evidence of provocation but, in the opinion of the presiding Judge, no evidence relevant to infer self-defence; and he withdrew the special defence from the jury's consideration, leaving it open to them, however, to consider the question of provocation. The jury returned a verdict of culpable homicide. In an appeal against conviction on the ground that the special defence should not have been withdrawn from the jury,—
Held (1), applyingKennedy v. H. M. Advocate, 1944 J. C. 171, that the presiding Judge had acted correctly in deciding for himself whether there was any evidence relevant to infer self-defence, and in withdrawing the special defence from the jury in conformity with his decision, (2) that there was in fact no evidence relevant to infer self-defence, and that accordingly the appeal failed.
Per the Lord Justice-General:—"Exculpation is always the sole function of the special defence of self-defence. Provocation and self-defence are often coupled in a special defence, and often I fear confused; but provocation is not a special defence and is always available to an accused person without a special plea. The facts relied upon to support a plea of self-defence usually contain a strong element of provocation, and the lesser plea may succeed where the greater fails; but when in such a case murder is reduced to culpable homicide, or a person accused of assault is found guilty subject to provocation, it is not the special defence of self-defence which is sustained but the plea of provocation."
Arthur Crawford was charged on an indictment at the instance of His Majesty's Advocate which set forth that "you did, on 16th March 1950, in the house occupied by your father, Alexander Crawford, at 95 Ledaig Street, Glasgow, assault said Alexander Crawford, and did stab him in the heart and lung with a knife or other similar instrument, and you did murder him."
The panel pleaded not guilty and stated the special defence "that on the occasion libelled he was acting in self-defence." He was tried before Lord Mackay and a jury at Glasgow on 2nd and 3rd May 1950. After evidence had been led, including some evidence of provocation by the deceased and of diminished responsibility on the part of the panel, Lord Mackay directed the jury that the special defence had failed and that it was not open to them to consider it. He, however, left it to them to consider the questions of provocation and diminished responsibility, and they unanimously found the panel guilty of culpable homicide. The circumstances of the assault are narrated in the fifth paragraph of the Lord Justice-General's opinion. The panel was sentenced to ten years' penal servitude.
The panel appealed against his conviction on the ground "that the Judge erred in withdrawing the special defence of self-defence from the consideration of the jury." He also presented a note of application for leave to appeal against his sentence on the ground that it...
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