Whyte v Hm Advocate
| Jurisdiction | Scotland |
| Judgment Date | 24 May 1996 |
| Date | 24 May 1996 |
| Docket Number | No 29 |
| Court | High Court of Justiciary |
JC
LJ-G Hope, Lords Sutherland and Macfadyen
Procedure—Solemn procedure—Trial—Judge's charge—Self defence—Pannel in evidence admitting using excessive force—Whether trial judge entitled to withdraw defence of self defence from jury
A pannel was charged with assault to severe injury and lodged a special defence of self defence. The evidence disclosed that the pannel punched the complainer with very considerable force which knocked him to the ground and that, as the complainer got up again, the pannel delivered another blow to his face. The medical evidence supported this evidence in that it showed the complainer suffered two fractures of the lower jaw which required to be repaired with plates and pins. The pannel admitted assaulting the complainer but stated that immediately prior to the assault by him on the complainer, the complainer had jumped up and it appeared to him that the complainer was going to punch the complainer's mother. There was a basis in evidence for thinking that the pannel apprehended that the complainer was about to strike a blow and that his actions were therefore defensive of the complainer's mother. The pannel, however, did admit that he had gone too far in what he had done in an attempt to protect the complainer's mother from assault. In those circumstances, the trial judge withdrew the special defence from the jury on the Crown's motion. The pannel was convicted and appealed to the High Court of Justiciary.
Held (1) that a special defence of self defence should be left with the jury to consider if there was some evidence, however slight, on which a jury might properly come to the view that that defence was made out; (2) that in the evidence of the appellant in cross examination, there was room for the view that he was acting in self defence, and that the excessive blow which he admitted delivering was the result of an error of judgment made at a time and in circumstances where it was difficult to judge precisely how strong the blow needed to be, it always being difficult to judge precisely the force with which a blow might strike a victim; and (3) that the assessment of whether excessive force had been used was a matter for the jury to decide; and appealallowed.
Ian Jack Whyte was charged on an indictment at the instance of the Right Honourable the Lord Mackay of Drumadoon, QC, Her Majesty's Advocate, the libel of which set forth that: “On 19 July 1994 at 5/4 Clovenstone Drive, Edinburgh, you did assault John Steven Archibald, c/o Lothian and Borders Police, Edinburgh, and did repeatedly punch...
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