Nelson v HM Advocate
| Jurisdiction | Scotland |
| Judge | Lord Brodie,Lord Glennie,Lord Turnbull |
| Judgment Date | 31 July 2020 |
| Neutral Citation | [2020] HCJAC 31 |
| Date | 31 July 2020 |
| Court | High Court of Justiciary |
| Docket Number | No 1 |
[2020] HCJAC 31
Lord Brodie, Lord Glennie and Lord Turnbull
Attorney-General of Ceylon v Kumarasinghege Don John Perera [1953] AC 200; [1953] 2 WLR 238
Brodie v HM Advocate [2012] HCJAC 147; 2013 JC 142; 2013 SCCR 23; 2013 SCL 116; 2012 GWD 38-755
Duffy v HM Advocate [2015] HCJAC 29; 2015 SCCR 205; 2015 SCL 544; 2015 GWD 11-188
Duncan v HM Advocate [2018] HCJAC 60; 2019 JC 9; 2018 SCCR 319; 2018 GWD 33-421
Ferguson v HM Advocate [2008] HCJAC 71; 2009 SLT 67; 2009 SCCR 78; 2009 SCL 250
Graham v HM Advocate [2018] HCJAC 4; 2018 GWD 2-41
McInnes v HM Advocate [2010] UKSC 7; 2010 SC (UKSC) 28; 2010 SLT 266; 2010 SCCR 286; 2010 SCL 462; [2010] HRLR 17; [2010] UKHRR 287
Telford v HM Advocate [2018] HCJAC 73; 2018 GWD 39-481
Gordon, GH, The Criminal Law of Scotland (3rd ed, W Green, Edinburgh, 2001), para 25.09
Judicial Institute for Scotland, Jury Manual (Judicial Institute for Scotland, Edinburgh, 2015) (Online: http://www.scotland-judiciary.org.uk/Upload/Documents/Export_Jury_Manual_2019104_1809_1.pdf) (31 January 2020))
Justiciary — Procedure — Charge to jury — Misdirection by omission — Provocation not addressed in parties' jury speeches — Jury not directed on provocation — Whether material misdirection
Justiciary — Sentence — Attempted murder resulting in life-changing head injuries with a separate aggravated assault — Whether cumulo twelve year and six month custodial sentence excessive
Lawrence Nelson was charged, along with a co-accused, on an indictment at the instance of the Right Honourable W James Wolffe QC, Her Majesty's Advocate with, inter alia, two aggravated assaults, one libelled as an attempted murder. The appellant and his co-accused pled not guilty and the cause came to trial before Lord Uist and a jury in the High Court of Justiciary at Edinburgh on 1 July 2019. On 8 July 2019, the appellant was convicted of both the attempted murder and the aggravated assault. On 12 August 2019, the appellant was sentenced to a cumulo twelve year and six month custodial sentence. The appellant appealed against both conviction and sentence to their Lordships in the High Court of Justiciary.
The appellant was indicted along with a co-accused on, inter alia, two charges of aggravated assault, one libelled as attempted murder. The appellant lodged special defences of self-defence in respect of both the attempted murder charge and the aggravated assault charge. The Crown case was that the appellant attended at the locus with others in order to assault the two complainers over a debt. The appellant gave evidence that he had been attacked by both complainers and, thereafter, had defended himself. He was not asked, and did not give evidence about, whether he had lost self-control. Evidence was led that the complainer in the attempted murder charge had suffered life-changing head injuries and that without emergency surgery he would have died. Neither the Crown nor the defence addressed the jury on provocation. The trial judge did not direct the jury on provocation. The appellant was convicted of both charges. The trial judge imposed a cumulo twelve year and six month custodial sentence upon the appellant, six months of which was attributable to a bail aggravation on each charge. The appellant appealed against conviction and sentence.
The appellant argued that, on a reasonable view of the evidence, it had been open to the jury to find that he had acted under provocation in the charge of attempted murder and that the failure to direct the jury on provocation was, therefore, a material misdirection. It was submitted that the attempted murder element should be quashed and the rider ‘under provocation’ added to the charge. Although leave to appeal had been granted to argue the excessive nature of the cumulo sentence overall, it was argued that only if the provocation argument was successful, and the conviction for attempted murder quashed, would the sentence be excessive.
The Crown argued that there had been no evidence of loss of self-control and so no reasonable jury could, on the evidence, conclude that there had been provocation, and, as such, no direction on provocation had been required. It was further argued that esto there had been an evidential basis for provocation there had, in the circumstances of the case, been no miscarriage of justice.
Held that: (1) a verdict of assault under provocation was not one which a reasonable jury could have reached in the circumstances as there had been no evidence of loss of self-control (paras 26–32); (2) the Crown case, which the jury must have accepted, had been an account from which self-defence and provocation could not arise (paras 33, 34); (3) the appellant had been convicted of two very serious offences, one of which had particularly grave consequences for the complainer, and no question could arise as to the sentence selected having been excessive (para 36); and appeal refused.
Observed that in a case in which provocation was raised by a party, a judge might properly direct the jury that, on the evidence before them, a finding of provocation was not open (para 23).
Duffy v HM Advocate 2015 SCCR 205 and Graham v HM Advocate2018 GWD 2-41distinguished and Duncan v HM Advocate2019 JC 9followed.
The appeal called before the High Court of Justiciary, comprising Lord Brodie, Lord Glennie and Lord Turnbull, for a hearing, on 5 February 2020.
At advising, on 31 July 2020, the opinion of the Court was delivered by Lord Brodie—
Opinion of the Court—
[1] The appellant, who was born in February 1991, went to trial at Edinburgh High Court on 1 July 2019 along with his co-accused and brother, Gary Alan Bowman Nelson, on an indictment containing three charges. Both pleaded not guilty to all three charges and the appellant adhered to his special defences of self-defence on charges 1 and 2. At the conclusion of the Crown case on 5 July 2019 the Advocate-depute withdrew all three charges against Gary Nelson and charge 3 alone against the appellant; and made certain amendments to the indictment. The trial judge accordingly acquitted Gary Nelson of all three charges. He acquitted the appellant of charge 3. On 8 July 2019 the jury unanimously convicted the appellant of charge 1 as libelled and of charge 2 under deletion of the words ‘repeatedly strike him on the head with a crowbar and’. The terms of the charges of which the appellant was convicted were as follows:
‘(1) on 23 December 2018 at 86 Cawdor Crescent, Kirkcaldy you LAWRENCE SCOTT BOWMAN NELSON did whilst acting with others assault Greig Ramsay, c/o Police Service of Scotland, Brycedale Avenue, Kirkcaldy and did strike him on the head with a crowbar or similar instrument and inflict blunt force trauma to his head and body by means to the Prosecutor unknown, all to his severe injury, permanent disfigurement, permanent impairment and to the danger of his life and you did attempt to murder him;
you LAWRENCE SCOTT BOWMAN NELSON did commit this offence while on bail, having been granted bail on 23 November 2018 at Kirkcaldy Sheriff Court;
(2) on 23 December 2018 at 86 Cawdor Crescent, Kirkcaldy you LAWRENCE SCOTT BOWMAN NELSON did assault Mark Christie, c/o Police Service of Scotland, Brycedale Avenue, Kirkcaldy and did while acting with others repeatedly punch him on the head, all to his severe injury;
you LAWRENCE SCOTT BOWMAN NELSON did commit this offence while on bail, having been granted bail on 23 November 2018 at Kirkcaldy Sheriff Court.’
[2] The Advocate-depute moved for sentence and tendered a schedule of previous convictions applicable to the appellant and a victim statement on behalf of the complainer in charge 1, Greig Ramsay. She advised the court that the appellant had been remanded in custody since 27 December 2018. As the appellant had not previously received a custodial sentence the trial judge adjourned the case for the purpose of obtaining a criminal justice social work report (‘CJSWR’) to Livingston High Court on 12 August 2019. When the case called on that date, having heard a plea in mitigation and considered the terms of the CJSWR, the trial judge imposed a cumulo sentence of twelve years and six months' imprisonment from 27 December 2018 in respect of the two charges, six months of that sentence being attributed to the bail aggravation.
[3] The appellant has appealed against the terms in which he was convicted on charge 1. He has also appealed against sentence. The ground of appeal against conviction is that the trial judge misdirected the jury by omitting to give a direction that, if they rejected the special defence of self-defence in relation to the charge of attempted murder, it would be open to them to convict the appellant of assault to severe injury, permanent disfigurement, permanent impairment and to the danger of life, under provocation. The ground of appeal against sentence is that the sentence imposed was excessive, irrespective of whether the attempted murder element in the conviction on charge 1 is quashed, but that in the event of ground of appeal 1 being upheld the sentence would be excessive having regard to what the appellant would remain convicted of.
[4] The...
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