In the Scottish Courts
| DOI | 10.1177/002201836803200104 |
| Published date | 01 January 1968 |
| Date | 01 January 1968 |
| Subject Matter | Article |
In
the
Scottish
Courts
SELF
DEFENCE-DUTY
OF ACCUSED
TO
GIVE
EVIDENCE
Blair v.
H.M.
Advocate
THE accused in Blair v.
H.M.
Adu. (Criminal Appeal Court,
June
1967 unreported) was charged with assaulting another
man
to his severe injury by pushing
and
punching him, gripping
him
by the neck, throwing him to the ground
and
kicking him.
The
Sheriff-substitute (Hook) withdrew aplea
of
self-defence from
the
jury
on the basis
that
the violence was excessive in the circum-
stances, which showed
that
the accused
had
at most been threatened
with a minor assault.
The
jury
convicted the accused,
but
only
to the extent
of
assaulting the victim by putting an
arm
round
him
and
pulling
him
to the ground.
The
accused appealed against his conviction on the ground
that
the Sheriff-substitute
had
erred in withdrawing his special
defence from the
jury.
His appeal was allowed on this ground, since
it could not be said
that
the kind of violence
of
which he was actually
convicted was excessive,
and
since the Sheriff-substitute in with-
drawing the plea of self-defence
had
not taken into account the
possibility
that
the
jury
might notfind all the alleged violence proved.
The
case is of note, however, because the judges in the appeal
court specifically pointed
out
that
as a general rule a defence of
self-defence can succeed only where an accused himself gives
evidence,
and
that
in quashing the conviction in this case where the
accused
had
not given evidence they were relying on the specialities
mentioned above. It may be
that
in practice it will be very difficult
for
an
accused to plead self-defence without going into the witness
box
but
it is submitted that, as Lord Migdale said,
"that
is not an
invariable rule",
and
that
it is going too far to describe the rule
as a principle, as the Lord Justice Clerk (Grant) did in saying,
"I
do not wish to cast any doubt on
that
principle".
The
only
principle involved is
that
it is always for the Crown to prove their
case,
and
therefore to exclude self-defence where it has been properly
raised, beyond any reasonable doubt. There may well be occasional
cases in which the accused is able to obtain sufficient evidence in
48
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