Appeal Against Conviction By Robert Urquhart Against Her Majesty's Advocate
| Jurisdiction | Scotland |
| Judge | Lady Smith,Lord Bracadale,Lady Clark Of Calton |
| Judgment Date | 11 November 2015 |
| Neutral Citation | [2015] HCJAC 101 |
| Court | High Court of Justiciary |
| Docket Number | HCA/2015 |
| Published date | 11 November 2015 |
| Date | 11 November 2015 |
APPEAL COURT, HIGH COURT OF JUSTICIARY
[2015] HCJAC 101
HCA/2015/001080/XC
Lady Smith
Lord Bracadale
Lady Clark of Calton
OPINION OF THE COURT
delivered by LADY SMITH
in
APPEAL AGAINST CONVICTION
by
ROBERT URQUHART
Appellant;
against
HER MAJESTY’S ADVOCATE
Respondents:
Appellant: Renucci; Faculty Services Limited
Respondent: Niven Smith, AD; Crown Agent
11 November 2015
Introduction
[1] The appellant was convicted by the jury at Perth Sheriff Court on 16 February 2015 of two charges:
“(001) on 23 December 2013 at 203 Primrose Crescent, Perth you …. did assault Edward Rankin, Constable, The Police Service of Scotland then acting in the course of his duty and did strike him on the leg with a sword to his injury;
and
(002) on 23 December 2013 at 203 Primrose Crescent , Perth you … did behave in a threatening or abusive manner which was likely to cause a reasonable person to suffer fear or alarm in that you did shout, swear and brandish a sword at Constables Rory Duncan and Ian Bailey of the Police Service of Scotland then in the execution of their duties;
CONTRARY to section 38(1) of the Criminal Justice and Licensing (Scotland) Act 2010”.
[2] The issues raised by this appeal – which relates only to charge 2 – are:
1. Is the special defence of self defence available in relation to a charge under section 38(1) of the 2010 Act?
2. Does the defence available under section 38(2) of the 2010 Act impose a legal burden on an accused as opposed to an evidential one?
Background
[3] On 23 December 2013, at about 11am, police officers attended at the appellant’s home address in Perth to enforce a warrant. They attempted to force open the front door. The appellant was inside, behind the door. He was clad only in a t-shirt. The police officers cut a hole in the door and he thrust a sword through it on a number of occasions. The sword was about four feet long and it struck the police officer named in charge 1, on the leg. Charge 1 related to that matter. The appellant’s position at trial was that he had no idea who was at the door and thought there was about to be a break-in and a robbery or suchlike. A special defence of self defence had been lodged but the jury convicted him of that charge.
[4] Turning to the events to which charge 2 relates, they are as follows. Meanwhile, two other police officers had entered the house through the back door. One of them – Constable Rory Duncan – was in uniform. Both officers moved through the house and into the living room. Whilst doing so, they repeatedly shouted “police”. The appellant was in the living room. He was brandishing the sword and he shouted and swore constantly. He was standing about two metres from Constable Duncan and shouted “fuck off” to the police officers in the room. They were unnerved by his actions. Constable Duncan took out his CS spray and repeatedly told the appellant to put down the sword. The appellant initially refused to do so and continued to swear and brandish the weapon. A woman appeared and stood by the appellant. She asked Constable Duncan to refrain from using the spray and the appellant lowered his sword. Constable Duncan walked forward and wrenched it from his grasp.
Sheriff’s directions
[5] In his charge, the sheriff directed the jury that they could only consider the special defence of self defence in relation to the first charge; it played “no part whatsoever” in relation to the second charge (pages 19- 20).
[6] Regarding the second charge, the sheriff directed the jury:
“ …in general terms there’s no burden of proof on an accused person. There is an exception to this in this case and I, I shall give you specific directions later.” (page 13)
and
“If you accept …the evidence from the two officers, then you’ll have to consider whether the behaviour of the accused, in all the circumstances, was reasonable. This is a defence. The ..Act of Parliament which brought in this offence says that if an accused person …proves that …the behaviour was, in all the circumstances, reasonable, that amounts to a defence to the charge. Now, what this means is that an accused person has to satisfy you on a balance of probabilities that his behaviour was reasonable at the time he so acted.” (page 31)
Criminal Justice and Licensing (Scotland ) Act 2010 section 38
[7] The terms of the provisions relating to the statutory offence are fundamental to the issues raised in this appeal . They are:
“38 Threatening or abusive behaviour
(1) 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.”
Submissions for the appellant
Availability of self defence
[8] Counsel for the appellant submitted that self defence could be relevant to a charge under section 38(1) and the sheriff was wrong to have excluded it. He accepted that it would depend on the facts of the individual case. It might, however, be an answer to any or all constituent parts of the offence. In particular, it might be relevant to mens rea, the third element. He submitted that it would have been relevant to it in the present case. Counsel accepted that any issue of self defence could also be raised under the umbrella of section 38(2). He relied on the case of Derrett v Lockhart 1991 SCCR 109 and on the Crown’s stated position in their written argument which was to concede that since, on the authority of Derrett, self defence could be available in answer to a common law charge of breach of the peace, it must also be available in answer to a charge under section 38(1). We should record that, given the Crown’s concession, counsel had not anticipated being pressed on this issue by the court; we do not criticise him for that and commend him for having, in the event, assisted the court with detailed argument as noted above.
Burden of proof – section 38(2)
[9] Regarding the second issue, counsel submitted that it was clear that section 38(2) imposed only an evidential burden on an accused person. The sheriff had erred in directing the jury that they required to be satisfied he had established the defence on a balance of probabilities. The circumstances of the present case could be distinguished from those in the cases of Glancy v HMA 2012 SCCR 52 and McMurdo v HMA 2015 HCJAC 37, where the court had confirmed that a legal burden of proof was imposed in relation to statutory defences to, on the one hand, a charge of carrying a knife in public and, on the other hand, a charge of possessing indecent images of children. Those were far more serious offences. Here, the nature of the public interest was different and of lesser nature. There was no need to impose a legal burden and it was disproportionate to do so.
Submissions for the Crown
Availability of self defence
[10] The advocate depute, whilst acknowledging the concession contained in the Crown’s written submission as referred to above, very frankly explained that he now had reservations about it. The common law crime of breach of the peace was not identical to an offence under section 38(1); the common law crime was more serious in respect that something greater than mere irritation was required with a reasonable apprehension of disturbance to the public peace being an essential element of the common law offence. That being so, Derrett did not assist when considering the section 38(2) defence. Further, the defence available under section 38(2) was wide; that was the context in which any issue of self defence fell to be raised.
Burden of proof – section 38(2)
[11] The advocate depute submitted that the statutory defence imposed a legal burden on the accused. The wording supported that conclusion and was not incompatible with article 6(2) ECHR; it should, therefore, be given effect to (R v Johnston [2003] 1 WLR 1736 paragraphs 44 – 46 per Lord Nicholls of Birkenhead). Insofar as that interpretation would constitute an interference with the presumption of innocence, it was justified. It was not unreasonable or arbitrary; the appellant had a full opportunity to show that he was unaware of the identity of those trying to enter his home and was afraid for his own safety. These were matters so closely conditioned by his own state of knowledge and state of mind that it was – to use the terminology of Lord Bingham of Cornhill – “more appropriate” to require him to prove them on a balance of probabilities: Sheldrake v DPP [2005] 1 AC 264 at paragraph 41 as followed in Adam v HMA 2013 JC 221 at paragraph 24.
[12] When consideration was given to the words used in the statute, the activity prohibited and the balance to be struck between the public interest and the rights of the individual (Glancy v HMA 2012; McMurdo v HMA) it should be concluded that the burden was a legal one. He contrasted the present circumstances with those where the burden had been determined to be an evidential one; it was relevant that, unlike those offences under the Misuse of Drugs Act 1971 that carried a maximum sentence of life imprisonment - where the defence under section 28(2) of that Act imposed only an evidential burden - the maximum sentence available for a contravention of section 38(1) was five years imprisonment and/or a fine. He referred to the case of Glancy, and observed that the maximum punishment available (four years imprisonment) did not prevent it being concluded that the relevant burden was a legal one. That was indicative of the level of punishment available not being such as should tip the balance against a legal burden being imposed in the present case.
[13] In any event, even if the sheriff had misdirected the jury regarding the...
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