Ditchburn v HM Advocate
| Jurisdiction | Scotland |
| Judge | Lord Malcolm,Lord Turnbull,Lord Pentland |
| Judgment Date | 29 January 2020 |
| Neutral Citation | [2020] HCJAC 55 |
| Date | 29 January 2020 |
| Court | High Court of Justiciary |
| Docket Number | No 4 |
[2020] HCJAC 55
Lord Malcolm, Lord Turnbull and Lord Pentland
Green v HM Advocate [2019] HCJAC 76; 2020 JC 90; 2020 SCCR 54; 2019 GWD 39-631
McGartland v HM Advocate [2015] HCJAC 23; 2015 SCCR 192; 2015 SCL 471; 2015 GWD 11-184
McPhelim v HM Advocate 1960 JC 17; 1960 SLT 214
Sim v HM Advocate [2016] HCJAC 48; 2016 JC 174; 2016 SCCR 303; 2016 SCL 612; 2016 GWD 17-308
Judicial Institute for Scotland, Jury Manual (Judicial Institute for Scotland, Edinburgh, February 2019), Ch 43 (Online: http://www.scotland-judiciary.org.uk/Upload/Documents/JuryManualFebruary2019.pdf (22 February 2021)
Justiciary — Procedure — Charge to jury — Misdirection — Accused charged with assault and culpable homicide said to result from that assault — Jury directed that mens rea for culpable homicide included recklessness and gross carelessness — Whether material misdirection
David Ditchburn was charged on an indictment at the instance of the Right Honourable W. James Wolffe QC, Her Majesty's Advocate with, inter alia, assault and culpable homicide. The appellant pled not guilty and the cause came to trial before Lady Wise and a jury in the High Court of Justiciary at Edinburgh, on 9 May 2019. On 15 May 2019, the appellant was convicted of the charge of assault and culpable homicide. The appellant appealed to their Lordships in the High Court of Justiciary.
The appellant was indicted on, inter alia, a charge of assault and culpable homicide. The charge set forth that the appellant had struck the deceased on the face causing injury. Soon after, the deceased slumped off his seat, bleeding from his mouth. The blunt force mouth injury the deceased received was just one element in a multi-factorial death, with the blow itself not likely to have resulted in death. The appellant, in his evidence, admitted striking the deceased but said he did so acting in defence of another man. The jury were properly directed on assault. In respect of culpable homicide, the jury were directed that the unlawful act which caused death required to be intentional, reckless or grossly careless. The appellant was convicted, inter alia, of the assault and culpable homicide. He appealed.
The appellant argued that the trial judge had materially misdirected the jury on the mens rea for culpable homicide. As the illegal act libelled was an assault, the mens rea for the culpable homicide could be neither recklessness nor gross carelessness. It was submitted that it was a realistic possibility that the appellant had been convicted upon an erroneous basis as to the necessary mens rea.
The respondent accepted that there had been a misdirection but argued that, from the evidence, speeches and the charge when viewed as a whole, it was clear that the issue before the jury was one of a deliberate assault as a result of which the deceased died, especially where the appellant accepted that he had deliberately struck the deceased, albeit in defence of another man.
Held that the directions given 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 another man but nonetheless behaved recklessly or with gross carelessness and represented, therefore, a material misdirection (para 9) and appeal granted.
Observed that charges should be bespoke, tailored to the particular circumstances of the trial and to the issues which the jury requires to determine and, while...
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