Thomson v HM Advocate

JurisdictionScotland
JudgeLord Justice General (Carloway),Lord Glennie,Lord Turnbull
Judgment Date17 September 2020
Neutral Citation[2020] HCJAC 49
CourtHigh Court of Justiciary
Docket NumberNo 11

[2020] HCJAC 49

Lord Justice General (Carloway), Lord Glennie and Lord Turnbull

No 11
Thomson
and
HM Advocate
Cases referred to:

Lunn v HM Advocate [2015] HCJAC 103; 2016 SLT 98; 2016 SCCR 17; 2016 SCL 36

Rodger v HM Advocate [2014] HCJAC 133; 2015 JC 215; 2015 SCL 250; 2015 GWD 1-13

Sim v HM Advocate [2016] HCJAC 48; 2016 JC 174; 2016 SCCR 303; 2016 SCL 612; 2016 GWD 17-308

Urquhart v HM Advocate [2015] HCJAC 101; 2016 JC 93; 2015 SLT 853; 2016 SCCR 33; 2016 SCL 53

Justiciary — Procedure — Charge to jury — Misdirection — Accused charged with assault, possession of offensive weapon in public place and behaving in threatening or abusive manner — Accused relying on special defence of self-defence — Jury directed that fear of attack was not reasonable excuse for possession of offensive weapon in public place — Whether misdirection — Whether miscarriage of justice

Justiciary — Statutory offences — Possession of offensive weapon in public place without reasonable excuse — Accused relying on special defence of self-defence — Whether fear of attack reasonable excuse for having possession of offensive weapon — Criminal Law (Consolidation) (Scotland) Act 1995 (cap 39), sec 47(1)

Justiciary — Statutory offences — Accused relying on special defence of self-defence — Whether acting in self-defence is reasonable behaviour — Criminal Justice and Licensing (Scotland) Act 2010 (asp 13), sec 38(1)

Kenneth Thomson was indicted in the sheriff court at Edinburgh at the instance of the Right Honourable W James Wolffe QC, Her Majesty's Advocate, charged, inter alia, with assault and contraventions of sec 47(1) of the Criminal Law (Consolidation) (Scotland) Act 1995 and of sec 38(1) of the Criminal Justice and Licensing (Scotland) Act 2010. He pled not guilty and the cause came to trial before the sheriff (KM Maciver QC) and a jury. On 23 October 2019, the appellant was convicted of all three charges. The appellant thereafter appealed against conviction to their Lordships in the High Court of Justiciary.

Section 47 of the Criminal Law (Consolidation) (Scotland) Act 1995 (cap 39) provides, “(1) Any person who has with him in any public place any offensive weapon shall be guilty of an offence … (1A) It is a defence for a person charged with an offence under subsection (1) to show that the person had a reasonable excuse or lawful authority for having the weapon with the person in the public place. … (4) In this section– ‘offensive weapon’ means any article– (a) made or adapted for use for causing injury to a person”.

Section 38 of the Criminal Justice and Licensing (Scotland) Act 2010 (asp 13) provides, “A person (‘A’) commits an offence if– (a) A behaves in a threatening or abusive manner, (b) the behaviour would be likely to cause a reasonable person to suffer fear or alarm, and (c) A intends by the behaviour to cause fear or alarm or is reckless as to whether the behaviour would cause fear or alarm. (2) It is a defence for a person charged with an offence under subsection (1) to show that the behaviour was, in the particular circumstances, reasonable.”

The appellant was charged on indictment in the sheriff court with an assault, a contravention of sec 47(1) of the 1995 Act and a contravention of sec 38 of the 2010 Act arising from a single incident. At trial, evidence was led of the appellant's involvement in a confrontation in the street with another man, in the course of which the appellant brandished a broken bottle. At trial, the appellant relied on the special defence of self-defence. The sheriff directed the jury that self-defence only applied to the charge of assault and that alternative defences of “reasonable excuse” and “reasonableness” applied to the charges contrary to the 1995 Act and 2010 Act respectively. The sheriff directed the jury that fear of an attack was not a “reasonable excuse” for possession of an offensive weapon. The appellant was convicted of all three charges. The jury made deletions to the charge of assault which restricted the terms of that charge to an assault committed by the appellant having brandished the broken bottle. The appellant appealed against conviction.

The appellant argued that the sheriff had misdirected the jury regarding “reasonable excuse” in relation to the charge of possession of the offensive weapon, which had had a bearing upon the jury's consideration of the other charges.

The Crown conceded that there had been a misdirection in relation to the question of “reasonable excuse”. However, the verdicts returned were not illogical as the jury were satisfied that the appellant's brandishing of the bottle did not amount to self-defence after hearing all the evidence and receiving proper directions regarding self-defence.

Held that: (1) the direction given in relation to reasonable excuse for possession of an offensive weapon had been incorrect, and a more nuanced explanation had been necessary; the appellant's conviction for possession of the broken bottle could not stand and, thereafter, the question of whether the misdirection had introduced a fatal flaw into the jury's assessment of the use of the broken bottle fell to be considered (para 20); (2) the sole allegation within the charge of assault of which the appellant had been convicted had been that of brandishing the broken bottle at the complainer; the appellant had admitted that conduct, under explanation that he had been acting in self-defence and, in those circumstances, the statutory defence provided for in sec 47(1A) of the 1995 Act had been engaged by that account, as was the defence of self-defence which had been pled in relation to the assault charge (paras 21–23); (3) the breadth of the statutory defence provided for by sec 38(2) of the 2010 Act was wide enough to include the conduct of an accused person who claimed to be acting in self-defence and, in the circumstances, that statutory defence had also been engaged by the appellant's evidence as to why he had been brandishing the broken bottle (para 24); (4) the direction given by the sheriff regarding “reasonable excuse” was an absolute proposition which asked too much of the jury to appreciate that an accused could still be judged to have acted reasonably and appropriately by brandishing an offensive weapon in fear of an attack in the context of a charge of assault and to have acted reasonably in the context of a charge under sec 38 of the 2010 Act (paras 25–27); (5) given the deletions which had been made by the jury to the charge of assault, it was difficult to understand the basis of the convictions returned in relation to the statutory charges without concluding that the misdirection in relation to the offensive weapon charge had...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT